J-A12013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PECO ENERGY COMPANY,                              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

FIRST MONTGOMERY PROPERTIES, LTD.,
THE FAIRWAYS APARTMENTS
ASSOCIATES, L.P., FAIRWAYS
APARTMENTS G.P., INC., FMP/LAKESIDE
ASSOCIATES, L.P., AND FMP/LAKESIDE
PROPERTIES, INC.,

                            Appellants                No. 2100 EDA 2015


              Appeal from the Judgment Entered August 20, 2015
               In the Court of Common Pleas of Chester County
                    Civil Division at No(s): 2010-04274-CA


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 30, 2016

        First Montgomery Properties, Ltd. (FMP), The Fairways Apartments

Associates, L.P., Fairways Apartments G.P., Inc., FMP/Lakeside Associates,

L.P., and FMP/Lakeside Properties, Inc. (collectively Appellants) appeal from

the judgment entered in favor of PECO Energy Company (PECO) in the

amounts of $109,612.61 and $27,118.76 against Appellants, jointly and

severally, plus interest. We affirm.

        PECO filed this collection action against Appellants, who are the

owners of residential rental properties, to recover payment for utility
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A12013-16



services it supplied to Appellants’ tenants.1    Following a bench trial that

resulted in a verdict in favor of PECO, Appellants filed post-trial motions,

which were granted to the extent that the verdict was adjusted to include

joint and several liability. See Trial Court Order, 6/9/15. Appellant’s other

post-trial motions were denied.

       Appellants appealed to this Court and submitted a concise statement

of errors complained of on appeal in response to the court’s order.      See

Pa.R.A.P. 1925(b). The trial court issued an opinion on September 2, 2015,

that addressed the issues raised by Appellants.    The court’s opinion relied

extensively on a lengthy footnote contained in its previously issued June 9,

2015 order that addressed all of the issues raised by Appellants in this

appeal.

       In addressing Appellants’ issues, we are “limited to determining

whether the trial court’s findings are supported by competent evidence,

whether errors of law have been committed, or whether the trial court’s

determinations demonstrate a manifest abuse of discretion.”      McShea v.

City of Philadelphia, 995 A.2d 334, 338 (Pa. 2010). Moreover,

       [w]hen this Court entertains an appeal originating from a non-
       jury trial, we are bound by the trial court’s findings of fact,
       unless those findings are not based on competent evidence. The
____________________________________________


1
  In 2003, Appellants had entered into a contract with ConServe to handle
billing for PECO’s services. The deficient payments to PECO arose as a result
of ConServe’s continuing to bill Appellants’ tenants, while stopping its
payments to PECO in 2008.



                                           -2-
J-A12013-16


      trial court’s conclusions of law, however, are not binding on an
      appellate court because it is the appellate court’s duty to
      determine if the trial court correctly applied the law to the facts.

Id.

      We have reviewed the extensive certified record, the briefs of the

parties, the applicable law, and the thorough and well-crafted opinion

authored by the Honorable Edward Griffith of the Court of Common Pleas of

Chester County, dated September 2, 2015.            We conclude that Judge

Griffith’s comprehensive opinion properly disposes of the issues presented

by Appellants on appeal and we discern no abuse of discretion or error of

law. Accordingly, we adopt Judge Griffith’s opinion as our own and affirm

the judgment on that basis.

     Judgment affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/2016




                                     -3-
                                                                              Circulated 08/12/2016 08:49 AM




    PECO ENERGY COMPANY                                IN THE GOURT OF COMMON PLEAS
                  · Plaintiff
               . v ..                              CHESTER COUNTY, PENNSYLVANIA
   FIRST MONTGOMERY PROPERTIES,                        NO. 2010-04274
· LTD., individually and t/a FIRST
   MONTGOMERY GROUP, THE                          : CIVILACTION-LAW
   FAIRWAYS APARTMENTS·.
  ASSOCIATES, LP;, individually and t/a
   FAIRWAYS APARTMENTS, FAIRWAYS
  APARTMENTS G.P., INC.,
  FMP/LAKESIDE ASSOCIATES, LP.
  in~i¥1dually and t/a MELROSE STATION
  APARTMENTS and FMP/LAKES]DE
  PRO.PERTIES, INC.
                        Defendants

                                        OPINIQN
         Defendants, First Montgomery Properfles, Ltd., The Fairways Apartments
 Associates, L.P., Fairways. Apartments ·G.P.,· lnc., FMP/Lakeside Associates,
 LP., and FMP/Lakesjcte Properties; · Inc. (collectlvely, 'Defendants"), have
 appealed from ord~rs entered June 9, 201511nd March 1·8, 2014..
         Plaintiff, PECO ·Energy Company.' brought this action to recover sums for
                        .   .   .   .              .                               .
 electrical service .. delivered by PECO to 'resldentlal rental properties owned by
 Defendants. Following a· bench trial, a declslon was entered on February 4, 2015
 In favor of Plaintiff, PECO Energy Company. Thereafter, Defendants filed a post-
 trial motion. The order entered June 9, 2016 granted Defendants some post-trlal
 relief, specifically, the award was restated to take into account the Joint and·
several liability of the various defense entitles for the debt owed to PECO;
 however, most of the relief Defendants sought post-trial was denied." The order
entered March 18; 2014 had denied Defendants' rnotlon for summary judgment.
         Because. the foomote to the June 9, · 2015 Order addresses the issues
preserved by Defendants in their Statement of Matters Complalned of on Appeal,
we reproduce the footnote here2 forthe 'convenlence of the reviewing court:
            This is a· collection acflon brought by Plaintiff, · PECO Energy
         Cor;npany 1("PECQ11)1 to recover sums for utility. services, electric·
1   Erroneously stated as July 9, 2016 In the Notice of Appeal.
2
    Typographical errors have been corrected.              .




                                        1157(a)
      and gas, that PECO delivered to resldential rental properties owned
      by. Defendants, First Montgomery Properties, Ltd., lndlvldually and
      tla First Montgomery Group ("First Montgomery"), The Fairways
      Apartments Associates, LP., Individually and t/a Falrways
      Apartments, Fairways Apartments G.P.1 Inc., FMP/Lakeslde
      Associates, L.P. Individually and· t/a Melrose Station Apartments
      and FMP/Lakeside Properties, Inc.          ·            .  ·
           Defendants operate apartment complexes, Including The ·
      Fairways Apartments and Townhomes ("the Fairways Apartments")
      and      · Melrose      Station      Apartments·    ("the    Melrose
     Apartme.nts")(collectlvely, "the Apartment Complexes"). This action
     concerns the collection of eighteen past due accounts, fourteen at
    .the Fairways Apartments and four at the Melrose Apartments.
          On June 24, 2003, First Montgomery entered Into a contract
     with Conserve Energy ("Conserve") to manage billing for PECO
   ·s.upplled utlllty services to the Apartment Complexes:
          Before June 24, 2003, tenants of the Apartment Complexes
     were billed by and paid PECO for utility servlces.               .
          Subsequent to June 24, 2003, tenants of the Apartment
     Complexes were billed by and paid Conserve for utility services.
    To facilitate the transition to Conserve as a billing agent, PECO's
    metering of Individual tenant's units was ended and PECO Installed
    master meters at the Apartment Complexes. Electrlclty delivered by
    PECO to the master meters was routed. through underground
    transformers Installed by. Conserve and then delivered to individual
    tenant's units, where Conserve had -Installed their own metering
    equipment.        Conserve was responslole for paying PECO for
    electricity delivered to the master meters.            .
          Defendants, as owners/operators of the Apartment Complexes,
   were the rate payers or customers of PECO at all times. First
   Montgomery directed· PECO to cooperate wlt.h its agent, Conserve,
   In setting up a master meter/master account system at the
  Apartment. Complexes. First Montgomery directed PECO to send
   bills for utility services to Conserve.                          ·
         In or about February, 2008, whlle still collecting payments from
  the tenants, Conserve stopped paying PECO and Defendants'
  accounts with PECO. fell Into arrears. On April 5, 2010, PECO
  commenced this action for breach of contract and · unjust
: enrichment. At trial, PECO established that when suit was
  commenced the fourteen accounts as the Fairways Apartments had
  an unpaid balance of $109,612.61 and the· four accounts at the
  Melrose Apartments had an unpaidbalance of $27,118.76. These
  balances were cornprlsed of unpaid charges for utilities as well as
  late payment charges that posted monthly.
         There had been prior litlgatlor:i between PECO and the Fairways
  Apartments defendants, specltlcally, First Montgomery Properties,


                                   2




                              1158(a)
         · Ltd., The Fairways Apartments Associates, LP., Fairways
           Apartments· G.P., inc., FMP/Fairways Associates, L.P. and
           FMP/Falrways, Inc. ("Prior Litigation"). On February 12, 2009, a
         . settlement agreement resolved the Prior Litigation f'the ..Settlement _ .
           Agreement"). The Prior Litigation concerned fourteen Fairways
           Apartments' accounts, each separate and distinct from the eighteen
           accounts Involved in the current-litigation.                 ·
                Following a bench trial on January 13, 2015 and entry of our
           verdict, Defendants filed posHrlal motions, which we now address.
           Damages ewera:                       .    ·
                We found merit In Defendants' claim that the damages award·
          was- lnc.orrectly stated. Our order was amended to 'accurately state
           Defendants' liability.                                  ·
           Exclusion of evidence of the Settlement Agreement:
            · On PECO's motion In limine, evidence of the Settlement
          Agreement was precluded from trial. Defendants contend that the
          Settlement Agreement contains a general release- that bars the
          claims asserted in this action and should have been admitted at
        .trial.                     .
               In the Prior Litigation, PECO had sought the appointment of a
        ·receiver to collect $163,758.71 In past· due utility bills at the
          Fairmont Apartments. The Settlement Agreement recites:
              WHEREAS, as of January 12, 2009, PECO Energy alleges
              that First Montgomery owes PECO Energy the amount of
              $163,758.71 for utility service provided to First Montgomery
              under the account numbers referenced In Exhibit A (the
              "Debt'');
         (Settlement Agreement, p.1) Exhibit A, which defines "the Debt"
         that Is the subject of the Settlement Agreement, consists solely of
         this chart: ·
                                       First Montgomery Group
  Account                         Premlse Address               Balance as of Current        Due Date
  Number                                                        1/12/09         ·Bill
 11033-0142?    400 MONTGOMERY BLVD. G3BTIIORNDALB PA 193?2         $19.284.09 $2103.92 02/ffllOO
 38882-00600    O OVERLEAF DR. 040 TIIORNDALB PA 193?2              s122ss.n $1 7?4.20 O'lJOOI09
 35?88-02226    38SKYVIBWLN F4DTH0RNDALEPA 193?2                 · $J6 393.69 Sl?92.?6        02/02/09
26.S0?-01100    OGREBNDIUARLN. 02DTIIORNDALBPA 193?2                $JS 266.48 SI 466.S8 . ffllffll09
 14128-01908    200 MONTGOMERY BLVD. A3F THORNDALE PA 193?2         $12,443:SS $1122.44       02/02/09
45068-0080?     OTURTLBPOINTLN GSETHORNDALBPA 193?2 .               $1?0?6.80 $1803.58        02/02/09
4 I 975,00802   O TURTLBPOINfLN, H40 TIIORNDALE PA 193?2            $16 64l.S3 $1.894.24      (f)J02/09
45069·00600     O BLUFF RD. H4F 11-IORNDALE PA 193?2                 $S 829,39       sm.2s W02109
48161.00200 ·   O BLUFF RD H48 THORNDALE PA 193?2                    $8 986.<.iS SI 097.?9    02/0'}/00
48161i<ll?08    O FOOTHILL TRL, ASO THORNDALE PA 193?2            . $?,4?2.20       $9'45.93  wwoo
S 1253-01408    OBIUFFRD HSRTHORNDALBPA 193?2.                       $? 390.66 · $841.64      0?Kl1.,-\)9
60531-01608     O HORSESHOE DR. A48 THORNDALE.PA 193?2               S? sn.n        S99S.OS   02(02/09
63623-0I 60 I   O GOLFERS WAY. "B3E TIIORNDALE PA 193?2              $8 ?S?.60      S81?.2S   (f)j(f)J09
9?630·00200     2THORNDALEPL B2DTIIORNDALBPA i93?2                   $8 38?.SS      $8S3.2S   02/02109

                                                                Sl63,7S8.?I    $18,280.88



                                                3




                                          1159(a)
  The release provides:
     1. Mutual Release~
          A. Upon receipt of the final payment referenced In paragraph
          3 herein, PECO Energy releases and forever discharges First
          Montgomery, Its successors and assigns, officers, directors,
          agents. employees of and from any and all manner of
          actions and cause of action in law or equity; known or
          unknown (including but not limited to the filing of a complalnt
          before the Pennsylvania Public Utllity Commission or the
          Pennsylvania State Attorney General). and Including those
         which were or could have been asserted· or which PECO
          Energy ever had, now has, or ever will have against First
         Montgomery arising out of or In connection with the Debt.·
     (Settlement Agreement, p. 1)                                    .
     i   The entire release is qualified by the final clause, "arising out of
    .or in connection with the Debt." The "Debt" Is defined as fourteen
     specific Fairmont Apartment accounts, Tlie "Debt" is separate from
  · the eighteen accounts sued on In the within action, which Include
     four Melrose Apartment accounts. The release was specifically
     limited to the accounts defined by account number and account.
     balance as the "Debt", Defendants would have us Ignore this
     qualiflcatlon and read the release as encompassing all claims that ·
     PECO could have brought at the time of the settlement, whether or
     not such. claims involved Fairmount Apartment accounts or the
     same parties.
         The Settlement Agreement is · unambiguous and clearly
    ldentltles and narrowly defines the "Debt" released. Nothing In the
    Settlement Agreement suggests that the "Debt" was Intended to be
    expanded beyond the definition set forth at Exhibit A. "When
    construing agreements Involving clear and unambiguous terms, this ·
   .court need only examine the writing itself to give effect to the
    parties['] understanding. The court must construe the contract only ·
    as written and may' not modify the plain meaning of the words.
    under the guise of Interpretation. When the terms of a written
    contract are clear, this Court wlll not re-write it to give it a
    construction in conflict with the accepted and plain meaning of the
    languaqe used." Acme Markets. lnc. v. Federal Armored· Exp., Inc .•
    437 Pa.Super. 41, 648 A.2d 1218, 1220w1221 (Pa.Super.,1994).
    (citations omitted). Furthermore, the "effect of a release Is .to be
    determined by the ordinary meaning of its language." Republic Ins.
    Co. v, Paul Davis Svstems of Plttsbun:1h South. Inc. 543 Pa. 186,
    670 A.2d 614, 615 (Pa., 1995). Having determined that the release
   was limfted on ltsIace to the claims raised in the Prior Litigation. we
    concluded that the Settlement Agreement was of no probative
. value to the claims pending In the within action, which derived from


                                     4




                               1160(a)
  separate accounts and balances and did not arise out of or In
  connection with the "Debt".
      Defendants also sought to lntroduce evidence of the Settlement
  Agreement to counter trial ·testimony of PECO!s witness that .PECO
  had ·tried to "reach out to negotiate payment arrangements" but
  were "unable to negotiate payment." (N.T. 9:6·10) Defendants
  expressed .concern     that such statements were prejudicial.
  However, because this was a bench trial, we can assure
  Defendants that these comments were disregarded and played no
  part in our decision.                                              ·
   Formation of a confr(tQI: ·
        Defendants claim that PECO failed to establish the essential
  tenns of a contract, in this case the Tariff. However, a Tariff
   creates a contract and by accepting utility service delivered through
  master meters to its properties, Defendants agreed to abide by the
  Jarlffs rates, rules and regulations.                         .
       Tariffs, of course, can include schedules of rates, and all
       rules, regulations, practices or contracts Involving rates and
       have the force of law and are binding on both the utility and
       Its· customer. Behrend v. ·sell Tel§phone Company, 242
       Pa.Superlor Gt. 47, 363 A.2d 1152 (1976). And, In E.fil!
      Telephone Co.. v. Pennsvlvania Public Utilitv Commission,
       53 Pa.Commonwealth Ct. 241, 244, 417 A.2d 827, 828~29
  . · (1980), this Court construed Section 1303 of the Code and
      stated that "(t)here can be no lawful rate except the last taritf
      published as provided. by law.... Further, It is well established
      that In the absence of an exception by the Commission, a
      public utility may not charge any rate for services other than
      that lawfully tariffed .... " (Citations omitted, emphasis In
      original.) It Is well~settled In Pennsylvania that:
          Contracts for the service of utilities are presumed to
          have been made subject to the police power of the
          state ... , and it Is beyond the power of the contracting
         .partles . to fix rates or provide for service
          permanently.... (T)he Public Utility law supplant(s)
          any agreement tn so far as rates are Involved
          between the consumer and the utility. (Citations
          omitted, emphasis added.)
  Brockwav Glass Co. v. Pennsylvania Public Utility Commission, 63
  Pa.Cmwlth. 238, 437 A.2d 1067, 1070 (Pa.Cmwlth.;1981)(citatlons
  omitted). Tariffs are not mere contracts, but have the force of law
  and are binding on the consumer and the utlllty. Stiteler y. Bell Tel.
· QQ. 32 Pa.Cmwlth. 319, 379 A.2d 339,· 341 (Pa.Cmwlth. 1977).
  Regardless of the evidence PECO presented to support the terms
  of the Tariff, the Tariff applies by operation of law and Defendants,


                                  ·5




                              1161(a)
       by accepting utility service, and are bound to pay PECO In
       accordance with the terms of the Tariff In effect at the time the
       charges were Incurred.
            Defendants contend that PECO failed to establish liability for
       any defendant other than First Montgomery.
           That The Fairways Apartments Associates, L.P., lndfvidually .
      and t/a. Fairways Apartments and Fairways· Apartments G.P., Inc.
      operate -the Fairways Apartments· was admitted by Defendants in
      t~e pleadings. (Complaint and Amended Answer. ,-J,-J 4-7, 20, 25)
      The Utility Services Agreement entered into by The Fairways
      Apartments Associates, L.P. 'and Conserve describes The
      fairways Apartments Associates, LP. as the "owner" who "owns
      and operates" the Fairways Apartments. · (Exh. P-52, p.1) The
      Utility Services Agreement· also recites that it rs the "owner" who .
      purchases electric energy from the utility. (Exh. P-52, Exh. 0, p. 1)
          That FMP/Lakeside Associates, LP.. Individually and t/a
  · Melrose Station Apartments and FMP/Lakeside Properties,. Inc.
     operate the Melrose Apartments was admitted by Defendants ·in the ·
     pleadlngs. (Complaint and Answer, 11118-111 27, 32)
           Lisa Hofland, a PECO business analyst working in collections,
     testified that all of the Defendants were customers/account holders.
     (N.t. a:2·-15, 13:8-11.) On cross-examination, Ms. Holland was
     never questioned. about her identification of the Defendants as the
     parties responsible for the eighteen accounts at issue. Based upon
     Defendants' admissions In pleadings and the evidence as stated,
    we concluded that all of the Defendants had liability for specflc
     accounts as stated in our decision.
     ConSe,ve as agent: ·
        . Throughout thls lltigatlon, Defendants have attempted to
    distance themselves from Conserve. However, it was Defendants
    who brought Conserve into its relationship with PECO and directed
    PECO to communicate and cooperate with Conserve as "our agent
    In our metering and bllllng service program" at the Apartment
    Complexes. (Exh. P-10)
          On September 28, 2004, Conserve sent a letter to PECO
    identifying itself ·as the "accounts management agent for First
    Montgomery Group" and req(1estlng the creation of a master
    account for summary billing for the Fairways Apartments. (Exhs. P-
   a, 0-E) On the same day. ConServe. sent a second letter to PECO
   .identifying itself as the "accounts management agent for First
   Montgomery Group" and requesting the creation of a master
   account for summary billing for the Melrose Apartments. (Exhs. P-
   9, 0-F) In both instances, Conserve directed 'PECO to send its
   bills to Conserve at a Minnesota address.
          On October -15, 2004, First Montgomery sent a letter to· PECO
· stating:


                                    6




                               1162(a)
        ... we have retained Conserve Corporation to be our agent
        In our metering and billing services program [at the
       Apartment Complexes.] ... Please be advised that Conserve
        has . full authorization to work with yoy regarding .billing
       Issues on the above properties. In addition, we expect that
       you will honor ConServe's request as ounlnec In the
      .attached letters from Conserve [Exhs. P-8/D-E and P-9/D-
     . F]. Any communication regarding this program and the
       implementation process should be directed to Conserve as
       ~ur agent In this with us copied .. .              ·        ·
   (Exhs. P-10, D-G)(N.T. 89:12-18)
       PECO complied with First Montgomery's request and began to
  send bills· for utllHy services at the Apartment Complexes to the
  Minnesota address. As early as August, 2007, Defendants knew
  payments for utility accounts at the Apartment. Complexes were In
  arrears; however, Defendants chose to believe Conserve'e
  explanations, whic)l placed blame on PECO. (N.T. 91 :5-11,
  116:17-117:2,       118:23-119:2; Exhs. P-11, D-H) Defendants
  continued 'to work with Conserve, even though Conserve was
  never.able to produce a reconciliation of the accounts. (N.T. 86:2-4,
  117:5-8, 91 :23-92:5, 118:1-2) On May 14, 2008, First Montgomery
  sent a letter to Conserve terminating their contract. (N.T. 93:3-6,
  118:16-20, Exh. D-1) At about the same time, First Montgomery
  directed PECO to send bills for utility services at the Apartment
  Complexes to Its New Jersey offices. PECO again complied with.
  First Montgomery's Instructions.
      Based upon First Montgomery's conduct and representations to.
  PECO, we concluded that Conserve was First Montgomery's'
  agent.                           ·                                   ·
 . Defendants also argue that they are not· liable for the debt
 ConServe's criminal activity created because Conserve acted
 outside the. scope of Its agency when it stole funds collected from
 tenants at the Apartment· Complexes.              However, · PECO's
 contractual or Tariff relatlonshlp was With Defendants, not
 Conserve, and Defendants remain liable for the debt. "[A] principal
 Is liable to Innocent third parties for the frauds, deceits,
 concealments, misrepresentations, torts, negligences and other
 malfeasances or mtsfeasances of his agent committed In the
course of his employment, although the principal did not authorize,
justify or participate in, or indeed know of, such misconduct, or
even· if he forbade the acts or disapproved of them." Aiello     v.  Ed
Saxe~. Real Estate, Inc., · 508 Pa. 553, 499 A:2d 282,
287 (Pa., 1985). Defendants authorized PECO to interact with
Conserve as their agent and PECO complied with PECO'~
Instructions. The· relatlonshlp between Defendants and Conserve
does not in any way limit or reduce Defendants liability to PECO.


                                   7




                             1163(a)
  Admission of PECO's hlJJJng summaries:
   -- Defendants flied a motion in llmlne to exclude PECO's billing
  summaries as evidence. at trial on the basis that the billing
  summaries are not the best evidence of the debt. This motion was
  denied and at trial PECO introduced Jts. business records of the
  eighteen contested accounts, which consisted ·of Activity·.
  Statements, designated as billing summaries by the parties, as well
  as B!lls from 2008 through 4010. Biiis predating. 2008 were
  unavailable, having been destroyed by PECO In the usual course of
  business pursuant to its retention pol!cy.
      Pa.RE., Rule 1004 allows a party to use Its business records
  when origlnal Invoices are unavailable and provides:
      An original is not required and other evidence of the content
      of a writlng1 recordlnq, orphotopraph is admissible If:
       (a) all_ the originals are lost or destroyed, and not by the
       proponent actlnq in bad faith;
    Pa.RE., Rule 1004;
       Bills for· each account, dating from October, ;2008 for all but
   three accounts through October, 201 o, were admitted at trial, Biiis
   for the remaining three accounts; dating from December, 2008
   through October, 2010, were admitted. (Exhs. P-33 - P-50) In
   addition, Activity Statements for each account were admitted.
   (Exhs. P-15 - P-32) Each Activity Statement set forthlnvolce dates,
   addressee, billing address, current charges, late fees, prior
   balances and payment credits. (N.T. 11:21-12;3) The recordsthat
   PECO produced contained the same information as the Bills that .
   had been sent monthly to. First Montgomery, either directly or
  through Its agerit, Conserve. The Activity Statements are created
  by PECO routinely and concurrently with their Bflls. · The Biiis are
  created for the customer and the Activity Statements are created
  for Internal purposes. (N.T. 11:15-20, 23:4-16) The records that
  PECO produced are maintained in the regular-course of business
  to record regular, buslness related activities. (N .T.. 12:4~11, 21 :5-
  12) The records PECO produced constitute business records and
  Defendants were not prejudiced In anyway by the absence of the
· original billing records.                                           '
 Un/ust enrichment:
    Defendants maintain that PECO did not establlsh a claim for
 unjust ..enrichment. Unjust enrichment requires proof of three
 elements:                                                        ·
    (i) [B]enefits conferred on defendant · by· plaintiff[;] (ii)
    appreciation of such· benefits by ,._.defendant{;] and (iii)
    acceptance and retention of such beneffts under such
    circumstances that It would be lneqult~ble for defendant to
    retain the benefit without payment of value.


                                   8




                               1164(a)
           Shafer Elec. & Constr. v. Mantia, 67 A.3d a.12 n. 5
           (Pa.Super.,2013)(citatlon omitted). PECO delivered utilities to
           Defendants' residential rental properties. Defendants are required
           to provide· their tenants with habitable units, which Include electrical
           power and heat. (N.T. 95:9-16) Defendant~ were able to maintain
          tenants In their properties and collect rent by accepting the benefit
           of the utllltles delivered by PECO. Defendants, or their agent,
          collected payments from tenants for the utilities, but failed to pay
           PECO's bill. PECO established Its claim for unjust enrichment.
               Defendants complain that that under unjust enrichment they can
          only be liable for electric charges and not late payment charges.
          However, the Tariff controls the charges for utilities and as such the .
          late payment charges are mandated and become. part of the debt.
          PECO does not have discretion to charge a customer other than as
          provided by the Tariff .


  •
      1
          For all of the reasons stated, we entered our Order.

                                                BY THE COURT:           ,_.., -········


Dated: September ( , 2015
                                                Edwa,~




                                            9




                                       1165(a)
