              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antonio Romeo,                                  :
                              Petitioner        :
                                                :
               v.                               :   No. 498 C.D. 2016
                                                :   Submitted: September 23, 2016
Pennsylvania Public Utility                     :
Commission,                                     :
                         Respondent             :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge1
        HONORABLE JULIA K. HEARTHWAY, Judge
        HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY JUDGE BROBSON                                    FILED: February 8, 2017

               Antonio Romeo (Romeo) petitions pro se for review of the order of
the Pennsylvania Public Utility Commission (Commission), adopting the Initial
Decision of an Administrative Law Judge (ALJ) and dismissing Romeo’s
exceptions to the Initial Decision. We now affirm, in part, reverse, in part, and
remand the matter for further proceedings.
               As background, by Act 129 of 2008 (Act 129),2 the General Assembly
amended the Public Utility Code (Code),3 for the purpose of reducing energy
consumption and demand. Act 129 set in motion a multi-phase implementation
process that addresses electric distribution companies and default service provider


      1
          This opinion was reassigned to the authoring judge on November 15, 2016.
      2
          Act of October 15, 2008, P.L. 1592.
      3
          66 Pa. C.S. §§ 101-3316.
responsibilities, conservation service providers,             smart meter technology,
time-of-use rates, real-time pricing plans, default service procurement, market
misconduct, alternative energy sources, and cost recovery. With regard to smart
meters, Act 129 provided that electric distribution companies were to provide the
Commission with smart meter technology procurement and installation plans for
approval. Section 2807(f) of the Code, 66 Pa. C.S. § 2807(f).
              After Act 129’s smart meter directive took effect, the Commission
adopted a Smart Meter Procurement and Installation Implementation Order
(Commission’s Smart Meter Order)4 to “establish the [standards that the smart
meter] plan[s] must meet and provide guidance on the procedures to be followed
for submittal, review and approval of all aspects of each smart meter plan.”
(Commission’s Smart Meter Order at 1.) PECO Energy Company (PECO) then
filed with the Commission a Petition for Approval of its Smart Meter Technology
Procurement and Installation Plan (Smart Meter Plan),5 which the Commission
approved after finding it to be in compliance with Act 129.6




       4
          Smart Meter Procurement and Installation Implementation Order – Adopted at
June 18, 2009, Public Meeting. Entered June 24, 2009. Docket No. M-2009-2092655 found at
http://www.puc.state.pa.us/filing_resources/issues_laws_regulations/act_129_information/smart_
meter_technology_procurement_and_installation.aspx (last visited Jan. 26, 2016).
       5
                 See     Docket       Number         M-2009-2123944      found       at
http://www.puc.pa.gov/about_puc/consolidated_case_view.aspx?Docket=M-2009-2123944 (last
visited Jan. 26, 2016).
       6
                 See     Docket       Number         M-2009-2123944      found       at
http://www.puc.pa.gov/about_puc/consolidated_case_view.aspx?Docket=M-2009-2123944 (last
visited Jan. 26, 2016).




                                              2
                In April 2015, Romeo filed a complaint alleging that PECO was
threatening to terminate his electric service because he did not allow PECO access
to his meter to replace it with a smart meter.7 Alleging that PECO’s attempts to
force the installation of a smart meter on his property are in violation of federal
law, specifically, the Energy Policy Act of 20058 (Energy Policy Act), Romeo
claimed that “to the extent that PECO is relying on [Act 129] as a justification for
forcing the installation of a smart meter on my property, PECO’s actions are in
violation of the [Energy Policy Act], which pre-empts Act 129.”                     (Romeo’s
Complaint, dated April 27, 2015 at 7, ¶ 9).
                Romeo asserted that all of his electric bills are paid on time and in
full. While he has not denied PECO access to his property in order to read his
meter, he has not and will not request the installation of a smart meter on his
property.      He further claimed that PECO was unfairly targeting him for the
installation of a smart meter, as PECO was not trying to force the installation on
some of his neighbors. Finally, he asserted that the smart meters cause fires,
serious health and safety issues, and privacy concerns, providing links to two news
articles about smart meter fires. As relief, Romeo requested that the Commission




       7
           In an appendix to the Complaint, Romeo explains that after he received a notice from
PECO about changing his meter to a smart meter, he called PECO and was unable to resolve the
issue. Then he received a termination of service notice, which stated that his “electric service
will be shut off on or after May 5, 2015 because ‘You did not give us access to our meter and
your equipment.’… [and] that PECO will not shut off [the] electric service if [Romeo] ‘[provides
PECO] access to our meter and your equipment.’” (Romeo’s Complaint, dated April 27, 2015
at 7, ¶ 4.)
       8
           Pub. L. No. 109-58, 119 Stat. 594 (2005).



                                                 3
order PECO to refrain from shutting off his electric service and to cease its
attempts to install a smart meter on his property.
             In response, PECO filed an answer with new matter and preliminary
objections averring that, in accordance with Act 129, it was required to install
Advanced Metering Infrastructure meters for all of its current Automated Meter
Reading customers by the end of 2014. It argued that, pursuant to its tariff, it has
the right to access a customer’s property at all reasonable times for the purpose of
installing, removing, or changing equipment belonging to PECO, and that the tariff
allows it to terminate a customer for cause if access to the meter is refused. PECO
added that neither Act 129 nor its Smart Meter Plan provides customers an option
to opt out of smart meter installation. PECO asserted that because its smart meters
are being installed in compliance with state law and the Commission’s Smart
Meter Order, no legal basis exists for Romeo’s complaint and that the complaint
should be dismissed as a matter of law. PECO contended in its preliminary
objections that Romeo’s complaint should be dismissed under the Commission’s
regulation at 52 Pa. Code § 5.101(a)(4), relating to legal insufficiency. Romeo
responded, arguing that PECO failed to address his argument that Act 129 is
preempted by federal law, and, accordingly, PECO did not have the authority to
force installation of a smart meter on his property.
             The ALJ sustained PECO’s preliminary objections and dismissed
Romeo’s complaint, concluding that under state law, a customer does not have the
option to opt out of the smart meters that an electric distribution company is
required to deploy and install pursuant to its Commission-approved Smart Meter
Plan. Explaining that PECO is required by statute and the Commission’s Smart
Meter Order to implement its Smart Meter Plan, install smart meters throughout its


                                          4
service territory, and charge a smart meter technology surcharge to all of its
metered customers, the ALJ concluded that the Commission does not have the
authority, absent a legislative directive, to prohibit PECO from installing a smart
meter even if a customer does not want one. The ALJ did not address either
Romeo’s preemption issue or his allegation that the meters were unsafe.
              Romeo’s exceptions to the ALJ’s decision only asserted that the ALJ
ignored his argument that federal law preempts Act 129. He went on to argue that
the ALJ’s conclusion that the Commission does not have the authority to prohibit
PECO from installing smart meters is incorrect and “rather, federal law compels
the Commission to direct PECO to cease and desist in its attempts to force
installation of the smart meter.”         (Romeo’s Exceptions to the ALJ’s Initial
Decision Granting Preliminary Objections, dated July 20, 2015 at 1, ¶ 1 (emphasis
in original).)    He contended that the ALJ mischaracterized his arguments as
“merely seeking to ‘opt out’ of the installation of the smart meter” when, in fact, he
“is asking the Commission to recognize that PECO’s acts are being taken in
violation of federal law.” (Id. at 2, ¶ 2.)
              The Commission denied the exceptions,9 adopted the ALJ’s decision,
and supplemented the ALJ’s decision by addressing Romeo’s federal preemption
challenge.10 Concluding that Act 129 was not preempted by the Energy Policy Act,
the Commission explained:

       9
          The Commission declined to consider PECO’s replies to the exceptions because they
were untimely filed. It noted that PECO had filed replies to the exceptions ten days after the
July 30, 2015 deadline to file, and PECO did not request or receive an extension of time for
filing the replies nor provide any reason for failing to meet the deadline.
       10
         Because the ALJ failed to consider Romeo’s federal preemption challenge,
Commissioner Pamela A. Witmer motioned before a public meeting that the ALJ’s initial
(Footnote continued on next page…)

                                              5
               Section 1252 of the Energy Policy Act amended the
               Public Utility Regulatory Policies Act of 1978 (PURPA),
               16 U.S.C. §[] 2621(d), to add provisions relating to smart
               metering. PURPA expressly allows state regulatory
               authorities, such as the Commission, to adopt, pursuant to
               state law, standards or rules affecting electric utilities that
               are different from the standards set forth in 16 U.S.C.
               §§ 2621, et seq. 16 U.S.C. § 2627(b).

(Commission’s March 3, 2016 Opinion at 8-9.) While Romeo did not raise it as an
exception, the Commission’s decision also addressed Romeo’s claim that smart
meters were dangerous. It concluded that Romeo’s challenge to the meters on that
basis was legally insufficient because Romeo “has not presented a claim to which
he could personally testify that would support a finding that a smart meter was
responsible for any fire or damage or other specific safety or health affects he
experienced within his home.” (Id. at 9.) Romeo petitioned this Court for review,
and PECO intervened.
               On appeal,11 Romeo again contends that Act 129 is preempted by the
federal Energy Policy Act. Romeo also argues that the Commission’s decision is


(continued…)

decision be modified consistent with staff recommendation and prior Commission Orders to
include a discussion and legal determination addressing why PECO’s mandatory installation of
smart meters is not in violation of the Energy Policy Act. Commissioner Witmer moved that the
initial decision be modified and that an opinion and order consistent with the motion be drafted.
That motion also stated that it did not support the referral of Romeo’s health and safety concerns
to the Investigation and Enforcement Bureau because his exceptions were limited to the
preemption issue and prior referrals involving other complainants had already been referred.
       11
           This Court’s review is limited to determining whether the Commission violated
constitutional rights, committed an error of law, rendered a decision that is not supported by
substantial evidence, or violated its rules of practice. United Transp. Union v. Pa. Pub. Util.
Comm’n, 68 A.3d 1026, 1032 (Pa. Cmwlth.), appeal denied, 80 A.3d 779 (Pa. 2013).



                                                6
contrary to Section 1501 of the Code, 66 Pa. C.S. § 1501, which requires public
utilities to maintain adequate, efficient, safe and reasonable service and facilities
for their customers, claiming that the smart meters are unsafe, and that the
Commission erred in denying him a hearing regarding the safety concerns he
raised. The Commission responds that it properly concluded that federal law does
not preempt Act 129 and that Romeo waived the remaining issues by not raising
them in his exceptions to the ALJ’s Initial Decision.
                  With regard to preemption, Romeo directs our attention to
Section 2621(d)(14)(A) of PURPA, 16 U.S.C. § 2621(d)(14)(A), which provides:
                  Not later than 18 months after August 8, 2005, each
                  electric utility shall offer each of its customer classes, and
                  provide individual customers upon customer request, a
                  time-based rate schedule under which the rate charged by
                  the electric utility varies during different time periods
                  and reflects the variance, if any, in the utility’s costs of
                  generating and purchasing electricity at the wholesale
                  level. The time-based rate schedule shall enable the
                  electric consumer to manage energy use and cost through
                  advanced metering and communications technology.

(Emphasis added.)             Citing to the Supremacy Clause of the United States
Constitution,12 Romeo argues that because Congress has declined to make the
installation of smart meters mandatory, Act 129’s compulsory installation is
contrary to federal law and must be reversed.

        12
             The Supremacy Clause provides, in relevant part:
        This Constitution, and the Laws of the United States . . . shall be the supreme Law
        of the Land; and the Judges in every State shall be bound thereby, any Thing in
        the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. art. VI, cl. 2.




                                                  7
             Our Supreme Court has established the three ways federal law may
preempt state law:
             First, state law may be preempted where the United
             States Congress enacts a provision which expressly
             preempts the state enactment. [Second], preemption may
             be found where Congress has legislated in a field so
             comprehensively that it has implicitly expressed an
             intention to occupy the given field to the exclusion of
             state law. Finally, a state enactment will be preempted
             where a state law conflicts with a federal law. Such a
             conflict may be found in two instances, when it is
             impossible to comply with both federal and state law or
             where the state law stands as an obstacle to the
             accomplishment and execution of the full purposes and
             objectives of Congress.

Office of Disciplinary Counsel v. Marcone, 855 A.2d 654, 664 (Pa. 2004) (internal
citations and quotation marks omitted).
             The “critical question in any preemption analysis is whether Congress
intended that the federal enactment supersede state law.” Krentz v. Consol. Rail
Corp., 910 A.2d 20, 32 (Pa. 2006). If a federal statute has an express preemption
provision, the plain words of that expression of preemption guide our preemption
analysis.   Id.    Section 2627(b) of PURPA, 26 U.S.C. § 2627(b), entitled
“Relationship to State law,” explicitly provides that it does not preempt state law:
“Nothing in this chapter prohibits any State regulatory authority or nonregulated
electric utility from adopting, pursuant to State law, any standard or rule affecting
electric utilities which is different from any standard established by this
subchapter.” Congress has not enacted a provision that preempts Act 129, but
rather, has expressly provided for state agencies such as the Commission to adopt
standards or rules affecting electric utilities that are different from the standards set
forth in PURPA or the Energy Policy Act.

                                           8
             Moreover, Section 2621(a) of PURPA, 26 U.S.C. § 2621(a), deals
with the interaction between federal and state law and specifically provides that the
standards set forth in that act supplement, not preempt, state law:
             Each State regulatory authority (with respect to each
             electric utility for which it has ratemaking authority) and
             each nonregulated electric utility shall consider each
             standard established by subsection (d) of this section and
             make a determination concerning whether or not it is
             appropriate to implement such standard to carry out the
             purposes of this chapter.          For purposes of such
             consideration and determination in accordance with
             subsections (b) and (c) of this section, and for purposes
             of any review of such consideration and determination in
             any court in accordance with section 2633 of this title,
             the purposes of this chapter supplement otherwise
             applicable State law.         Nothing in this subsection
             prohibits any State regulatory authority or nonregulated
             electric utility from making any determination that it is
             not appropriate to implement any such standard,
             pursuant to its authority under otherwise applicable State
             law.

(Emphases added.) The language of this provision expressly provides that after
considering the federal standards, state authorities have the power to choose
whether or not to adopt said standards or adopt their own standards.
             Because federal standards are a supplement to the state standards, and
the state is only required to consider the federal standards, the federal and state
standards are not and cannot be in conflict. Moreover, Congress’s enactment of
multiple provisions under PURPA, all providing that the state is entitled to adopt
its own guidelines that are different from those provided under PURPA, is
indicative of Congress’s lack of intent to occupy the field. Rather, it is indicative
of Congress’s objective to allow states to regulate how they choose. As such,



                                          9
PURPA and the Energy Policy Act do not preempt the smart meter provisions of
the Code or of Act 129.
            As to the remaining issues, the Commission argues that because the
sole issue Romeo raised in his exceptions in this case is whether the smart meter
provision of Act 129 is preempted by federal law, Romeo has preserved only that
issue for appeal. Section 335(a) of the Code, 66 Pa. C.S. § 335(a), however,
provides:
            (a) Procedures.--When the commission does not preside
            at the reception of evidence, the presiding officer shall
            initially decide the case, unless the commission requires,
            either in specific cases or by general rule, the entire
            record to be certified to it for decision. When the
            presiding officer makes an initial decision, that decision
            then shall be approved by the commission and may
            become the opinion of the commission without further
            proceeding within the time provided by commission rule.
            On review of the initial decision, the commission has all
            the powers which it would have in making the initial
            decision except as it may limit the issues on notice or by
            rule. When the commission makes the decision in a rate
            determination proceeding without having presided at the
            reception of the evidence, the presiding officer shall
            make a recommended decision to the commission in
            accordance with the provisions of this part. Alternatively,
            in all other matters:
                    (1) the commission may issue a tentative decision
                    or one of its responsible employees may
                    recommend a decision; or
                    (2) this procedure may be omitted in a case in
                    which the commission finds on the record that due
                    and timely execution of the functions imperatively
                    and unavoidably so requires.




                                        10
(Emphasis added.) In Energy Pipeline Company v. Pennsylvania Public Utility
Commission, 662 A.2d 641 (Pa. 1995), our Supreme Court explained that pursuant
to Section 335(a) of the Code:
              [I]f exceptions are filed, then the matter is taken to the
              [Commission], where “the [Commission] has all the
              powers which it would have had in making the initial
              decision . . . .” 66 Pa. C.S. § 335(a). The [Commission]
              has the power to conduct its own fact finding, to adopt or
              reject the ALJ’s decision, or to come to an entirely
              different resolution. Thus, if exceptions are filed, only
              the [Commission] can take action, and the ALJ’s decision
              cannot take on the force and effect of an order.

              Energy Pipeline Co., 662 A.2d at 644. Thus, under Section 335 of the
Code, once exceptions are filed or once the Commission takes a decision for
review sua sponte pursuant to 52 Pa. Code § 5.536,13 the Commission may review
the ALJ’s decision in its entirety without limit.             Thus, the Commission may
confine its review to issues raised in exceptions or may review issues not raised in
exceptions.     There is nothing in the record in this case to indicate that the
Commission limited its review by notice or rule. To the contrary, based upon the
Commission’s order, it is apparent that the Commission reviewed more than the
single exception raised by Romeo.
              Had the Commission limited its review to the exception raised by
Romeo, then the additional issue now raised by Romeo—whether the Commission
erred in failing to provide Romeo with a hearing regarding safety concerns—would
have been waived. See Springfield Twp. v. Pa. Pub. Util. Comm’n, 676 A.2d 304,

       13
         52 Pa. Code § 5.536 permits the Commission to review an ALJ’s decision to which no
exception has been filed if two Commissioners request review within fifteen days of the issuance
of the ALJ’s decision.



                                              11
309 (Pa. Cmwlth. 1996) (holding that where exception was not raised and “was not
considered by” Commission, that issue is waived); see also Capital City Cab Serv.
v. Pa. Pub. Util. Comm’n, 138 A.3d 119, 132 (Pa. Cmwlth. 2016) (en banc)
(holding that where issue is not raised by exception filed with Commission, “it is
not preserved for our review.”); accord Pa. Power Co. v. Pa. Pub. Util. Comm’n,
561 A.2d 43 (Pa. Cmwlth. 1989) (en banc), aff’d, 587 A.2d 312 (Pa.), cert. denied,
502 U.S. 821 (1991). This waiver principle, however, is not applicable here, where
the Commission elected to consider an issue not raised by an exception. Under the
circumstances present in this case, where the Commission conducts a review that
encompasses issues not raised by an exception, Romeo is not precluded on appeal
from raising issues specifically addressed by the Commission.14
              Having concluded that the remaining issues raised by Romeo are not
waived, we now consider the merits of Romeo’s arguments.                    With regard to
Section 1501 of the Code and the safety and other concerns raised by Romeo,
Romeo argues that the Commission erred in not affording him a hearing regarding
his concerns, especially in light of the “clear evidence of the dangers these smart
meters pose and [Romeo] should not be forced to have suffered damage to his
home or his family’s health . . . in order to have the opportunity to challenge the
installation of a smart meter at his home.” (Romeo’s Brief at 8.) The Commission
argues, however, that because he cannot personally testify that a smart meter was
responsible for any fire, health, or safety defect, Romeo’s complaint is legally
insufficient as a matter of law.

       14
          This interpretation is particularly necessary in light of 52 Pa. Code § 5.536, which
permits review without exceptions having been filed, because otherwise all issues arguably
would be waived and the Commission’s order could not be challenged.



                                             12
             What was before the Commission was PECO’s preliminary
objections, in which all factual allegations are taken as true. Romeo claimed that
the smart meters cause safety and fire hazards and have a negative health impact.
Just because he cannot personally testify as to the health and safety effects does not
mean that his complaint is legally insufficient. He could make out his claim
through the testimony of others as well as other evidence that goes to that issue.
Because his complaint was not legally insufficient, the Commission erred in
dismissing the complaint.
             Accordingly, for the foregoing reasons, to the extent that the
Commission’s order concluded that federal law did not preempt Act 129 as to the
installation of smart meters, the Commission’s order is affirmed. The portion of
the Commission’s order, however, sustaining PECO’s preliminary objections and
dismissing for legal insufficiency Romeo’s complaint that smart meters present
health and safety concerns is reversed, and the matter is remanded to the
Commission for proceedings consistent with this opinion.




                                P. KEVIN BROBSON, Judge




                                         13
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Antonio Romeo,                           :
                         Petitioner      :
                                         :
            v.                           :   No. 498 C.D. 2016
                                         :
Pennsylvania Public Utility              :
Commission,                              :
                         Respondent      :



                                      ORDER


            AND NOW, this 8th day of February, 2017, the order of the
Pennsylvania Public Utility Commission, dated March 3, 2016, is AFFIRMED, in
part, and REVERSED, in part. The order is AFFIRMED to the extent that it
concluded that federal law did not preempt Act 129 of 2008, 66 Pa. C.S. § 2807,
as to the installation of smart meters. The order is REVERSED to the extent that it
sustained PECO Energy Company’s preliminary objection based on legal
insufficiency and dismissed Petitioner Anthony Romeo’s claim that smart meters
present a health and safety concern.         This matter is REMANDED to the
Commission for proceedings consistent with this opinion.
            Jurisdiction relinquished.




                               P. KEVIN BROBSON, Judge
