HomeMy WebLinkAbout08-7475IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND AND,
WIFE INDIVIDUALLY, AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES
SIMILARLY SITUATED
Plaintiffs
V.
No. b$ • '7175 D-1 V; I, em
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
COMPLAINT
NOTICE TO DEFEND
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this complaint and notice
are served, by entering a written appearance personally or by attorney and filing in writing with the
court your defenses or objections to the claims set forth against you. You are warned that if you fail
to do so the case may proceed without you and a judgment may be entered against you by the court
without further notice for any money claimed in the complaint or for any other claim or relief
requested by the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 South Bedford Street
Carlisle, PA 17013
1-800-990-9108
717-249-3166
HAR:82898.2/SHE224-236835-
INTRODUCTION
The Plaintiffs Tod and Lisa Shedlosky (the "Shedloskys") bring this action as a class
action on behalf of themselves and a class of persons similarly situated to recover costs
unreasonably collected by Defendant Pennsylvania Electric Company ("Penelec"), for the
relocation of electric facilities located within rights-of-way on property owned by class members.
The charges are improper under the applicable right-of-way agreements ("ROW") between the
property owners and Penelec.
THE PARTIES
2. Plaintiffs Tod and Lisa Shedlosky are individual adults, husband and wife, with an
address of 6346 North Powderhorn Road, Mechanicsburg, Pennsylvania 17050.
3. Defendant, Pennsylvania Electric Company ("Penelec"), is a corporation organized
and existing under the laws of the Commonwealth of Pennsylvania with a place of business in
Reading, Pennsylvania.
4. Penelec owns and operates facilities for the transmission and distribution of
electricity in Cumberland County.
5. Penelec sells electricity to customers in Newburg, Shippensburg and territory
adjacent thereto within Cumberland County, Pennsylvania.
6. At all times material to this action, Penelec acted by and through its agents,
employees, servants, and workers, actual or ostensible, any and all of whom were acting within the
course and scope of their authority, agency, duties and/or employment.
7. At all times material to this action, Penelec was a public utility regulated by the
Pennsylvania Public Utility Commission ("PUC").
HAR:82898.2/SHE224-236835
-2-
JURISDICTION AND VENUE
8. The PUC has determined, in prior litigation before it between the Shedloskys and
Penelec, that the issues raised in this matter are not within its jurisdiction but are within the
jurisdiction of the appropriate Court of Common Pleas. See Shedlosky v. Pennsylvania Electric
Company, PUC Docket No. C-20066937, Opinion and Order of May 22, 2008, as clarified by
Opinion and Order of August 7, 2008 ("PUC Opinion").
9. Venue of this action is proper in this Court under Rules 2156 and 2179, Pa.R.C.P., in
that a substantial part of the events and omissions giving rise to the claim occurred within
Cumberland County and the cause of action arose in this County.
10. The amount in controversy, exclusive of interest and costs, exceeds the sum
mandating compulsory arbitration.
The Right of Way
FACTS
11. The Shedloskys own real property located at the corner of Walnut Bottom Road and
Airport Road in Shippensburg, Pennsylvania. The property is at the southeast corner of an
intersection created for access to a Wal-Mart shopping center.
12. On or about July 1, 1960, Penelec entered into a right-of-way agreement with Frank
and Janet Hollar (the "Hollars"), then the owners of the property now owned by the Shedloskys. A
true and correct copy of the Right-of-Way Agreement is attached hereto as Exhibit A and is
incorporated herein by reference.
13. The Right-of-Way Agreement utilizes a pre-printed form, drafted by Penelec, that is
filled in with the specifics applicable to the property and the requested right-of-way.
14. The Right-of-Way Agreement allowed Penelec to locate various equipment on the
Hollar property.
HAR:82898.2/SHE224-236835
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15. Following finalization of the Right-of-Way Agreement, Penelec installed on the
property a section of a 3-phase 23,000 volt distribution line and poles.
16. Penelec has maintained the distribution line on the property to this date.
17. As consideration for the rights granted to it in the Right-of-Way Agreement, Penelec
paid the Hollars $26.
18. Penelec paid no additional lease or rent fees to the Hollars, or their successors-in-
interest, for the use of the property for electric utility facilities.
19. Plaintiffs believe that the price terms in the Right-of-Way Agreement with the
Hollars is consistent with Penelec's standard price terms in securing rights-of-way.
20. Under the Right-of-Way Agreement, "upon proper request" of the property owner,
Penelec agreed to relocate the electric facilities that are located within the right-of-way on the
property. The standard for doing so under the Right-of-Way Agreement is "If future conditions
require ...."
The Shedloskys' Purchase of the Pro-pert
y
21. In November of 2005, the Shedloskys purchased the property. They did so with the
intent to subdivide and develop the property.
22. Through this purchase, the Shedloskys became the successors in interest to all rights
of the Hollars regarding the property, including rights under the Right-of-Way Agreement.
23. The Right-of-Way Agreement has been in effect at all times since the Shedloskys
purchased the property.
The Shedloskys' Relocation Request
24. In 2005 and 2006, the Shedloskys undertook efforts to subdivide and develop the
property.
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25. The Shedloskys entered into an agreement with Rutters Farm Store under which
Rutters would purchase a portion of property, after subdivision, and locate a store at that
location.
26. As part of the subdivision and development process for the property, the
Shedloskys were required to obtain a highway occupancy permit from the Pennsylvania
Department of Transportation to accommodate a road expansion that was part of the
contemplated project.
27. The road expansion required the relocation of certain of Penelec's electric facilities
located within the right of way on the property.
28. On June 21, 2005, the Shedloskys submitted a Facilities Relocation Request to
Penelec, asking it to relocate certain of its electric facilities located within its right-of-way on the
property.
29. Penelec designed the work necessary to perform the Facilities Relocation Request
and prepared a cost estimate, which was $53,284.92.
30. The Right-of-Way Agreement does not expressly address who is responsible for the
costs associated with relocation of Penelec facilities.
31. In March of 2006, Penelec issued an invoice to the Shedloskys in the amount of
$53,284.92 for the estimated cost of the relocation project.
32. Penelec refused to relocate the electric facilities without prior payment of the invoice
amount.
33. In May of 2006, in the interest of moving forward with its project, the Shedloskys
paid the invoice amount, $53,284.92, under protest and without waiver or limitation of its right to
seek appropriate redress.
HAR:82898.2/SHE224-236835
-5-
34. Penelec completed the relocation work in August of 2006.
Inannronriate Use of Penelec's Tariff
35. Penelec based its position that the Shedloskys were responsible for the relocation
costs on Rules 7 and 8 of the Tariff in existence in 2006, Tariff - Electric Pa. P.U.C. No. 77.
Those provisions generally impose relocation costs on the customer who requests the relocation.
36. The PUC, in the proceedings between the Shedloskys and Penelec, determined that
the Penelec Tariff was inapplicable but that, instead, the Right-of-Way Agreement controlled
Penelec's ability to charge the relocation costs to the Shedloskys. (On that basis, the PUC
determined that it lacked jurisdiction over the dispute.) See PUC Opinion.
37. Under the Right-of-Way Agreement, Penelec cannot charge the costs of facilities
relocation to the Shedloskys when the request is required by conditions at the property that have
ansen since execution of the Agreement.
CLASS ACTION ALLEGATIONS
38. The Plaintiffs bring this action as a class action pursuant to Pa.R.C.P. No. 1701 et
seq. on behalf of themselves and a class of persons similarly situated, defined as follows:
all individuals, proprietorships, partnerships, corporations,
institutions, and other businesses and commercial establishments
within the Commonwealth of Pennsylvania who: (1) either
themselves or by a predecessor-in-interest, had entered into a right of-
way agreement with Penelec permitting the locating of electrical
facilities within the right-of-way; (2) whose right-of-way agreements
contained terms with respect to the allocation of the costs of
relocating those electrical facilities substantially in the form contained
in the Shedloskys' right-of-way agreement; (3) who requested
Penelec to move electrical facilities located within the right-of-way
based on changed conditions since the execution of the right-of-way
agreement; and (4) who were required by Penelec to remit the costs,
as determined by Penelec, for the relocation of the electrical facilities
located in the right-of-way, all within the applicable four year statute
of limitations.
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39. The Plaintiffs believe that the class is sufficiently numerous that joinder of all class
members is impracticable. As of this filing, the Plaintiffs do not know the number of class
members or the identity of all such members.
40. There are questions of law and fact common to the class. These include the
following:
a. All class members own or owned property in an area in which Penelec
provided electric service or otherwise needed access to class members'
property as part of its provision of electric service.
b. All class members entered into agreements with Penelec allowing it to place
electrical equipment on property owned by the class members.
C. The Right-of-Way Agreements were created by Penelec using a form drafted
by Penelec.
d. The agreements had comparable provisions regarding the payment for
relocation of electrical equipment located within the right-of-way, and/or the
pertinent contract language was interpreted by Penelec to require application
of the tariff then in effect.
e. All class members paid Penelec relocation costs, such payment being
established by Penelec as a condition of the relocation of electrical facilities.
41. The common questions of law and fact predominate over questions affecting
individual class members. The Right-of-Way Agreements present legal issues that are not
dependent on the facts as applicable to any particular owner or occupant, except as relates to the
amount that the Defendant owes in damages.
42. This class action permits the class members to prosecute their common claims in a
single forum simultaneously, without unnecessary duplication. The class action provides an
efficient method whereby the rights of the Plaintiffs, class members, and Defendant can be
managed and resolved in a single adjudication.
43. The claims of the Plaintiffs, as the representative plaintiffs, are typical of the claims
of the class, in the same cause of action and common nucleus of operative facts applies to the
representative are coincident with, and not antagonistic to, those for the rest of the class.
HAR:82898.2/SHE224-23683 5
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44. Class treatment is a superior method for the fair and efficient adjudication of the
controversy described. The questions of law and fact common to the numbers of the class
predominate over any questions affecting individual members under the criteria set forth in Rule
1708, Pa.R.C.P.
45. Neither the size of the proposed class nor any particular difficulties likely to be
encountered in managing the class action make certification inappropriate.
46. This Court is an appropriate forum for resolution of this class action.
CAUSES OF ACTION
Count I: Breach of Contract on Behalf of the Named Plaintiffs
47. Plaintiffs incorporate by reference 111-45 of the Complaint in this matter.
48. Penelec's insistence that the Shedloskys prepay the costs of relocating the electric
facilities within the right-of-way is a breach of the Right-of-Way Agreement.
49. The Shedloskys have incurred damages in the principal amount of $53,284.92, that
being the amount they paid to Penelec, under protest, to enable the relocation to proceed.
WHEREFORE, based upon the foregoing, the Shedloskys request that this Court (a) enter
judgment in favor of the Shedloskys and against Penelec in the principal amount of $53,284.92,
together with interest; and, (b) grant any other relief deemed appropriate.
Count II: Breach of Contract on Behalf of the Class
50. Paragraphs 1, 3-10, and 37-45 of the Shedloskys' Complaint are incorporated as if
fully set forth herein
51. Plaintiffs believe that Penelec entered into Right-of-Way Agreements with other
property owners that contained comparable, if not identical, language to that in the Shedlosky
Agreements with respect to financial responsibility for relocation of Penelec electrical facilities
located on their properties.
HAR:82898.2/SHE224-236835
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52. Penelec's insistence that the class members prepay the costs of relocating the electric
facilities within the right-of-way is a breach of the Right-of-Way Agreement.
53. The class members have incurred damages in amounts currently unknown to enable
the relocation of Penelec electrical facilities located on their properties to proceed.
WHEREFORE, based upon the foregoing, the Shedloskys request that this Court (a) grant
judgment in favor of the class members and against Penelec in an amount to be determined at trial;
(b) award the Shedloskys and the class members costs and attorney fees to the extent hereafter
determined to be permissible under applicable law; and (c) grant any other relief deemed
appropriate.
r;
'Deanne O'Dell -T
Carl Shultz i
Robert B. Hoffinan
WolfBlock, LLP
213 Market Street, 9th Floor
P. O. Box 865
Harrisburg, PA 17108-0865
(717) 237-7160
rlloff-nannwolfblock com
dodell()wolfblock com
HAR:82898.2/SHE224-236835
-9-
VERIFICATION
I, Tod Shedlosky, hereby verify, subject to the penalties in 18 Pa. C.S. § 4904 relating to
unworn falsification, that I am familiar with the factual averments set forth in the foregoing
Complaint, and that the factual averments therein are true and correct to the best of my
knowledge, information and belief.
Tod Shedlosky
f)A)b"? A
05/08/06 HON 12:59 FAS 71.7 7,17 471.
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2008-07475 P "'"'
"Now
COMMONWEALTH OF PENNSYLVANIA: "low
COUNTY OF CUMBERLAND A"
SHEDLOSKY TOD ET AL
VS
PENNSYLVANIA ELECTRIC COMPANY
R. Thomas Kline
Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
PENNSYLVANIA ELECTRIC COMPANY
but was unable to locate Them
deputized the sheriff of BERKS
in his bailiwick. He therefore
serve the within COMPLAINT & NOTICE
County, Pennsylvania, to
On January 27th , 2009 , this office was in receipt of the
attached return from BERKS
Sheriff's Costs:
Docketing 18.00
Out of County 9.00
Surcharge 10.00
Dep Berks County 30.60
Postage .93
68.53
01/27/2009
WOLF BLOCK LLP
Sworn and subscribe to before me
this day of
>
'75
So answers
R. Thomas Kline
Sheriff of Cumberl nd County
A. D.
a--
cn _
C\l
1
c • ""%
Delano M. Lantz, Esquire (ID 21401)
Lantz & Associates
4 North Hanover Street
Carlisle, PA 17013
(717) 448-8634 (phone)
Attorney for Defendant Pennsylvania
Electric Company
TOD AND LISA SHEDLOSKY, COURT OF COMMON PLEAS
HUSBAND AND WIFE INDIVIDUALLY, CUMBERLAND COUNTY
AND ON BEHALF OF ALL OTHER :
PERSONS AND ENTITIES SIMILARLY
SITUATED,
Plaintiffs No.: 08-7475 Civil Term
vs. Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Delano M. Lantz, Esquire of Delano M. Lantz & Associates hereby enters his appearance
on behalf of Defendant Pennsylvania Electric mpany in the above-referenced matter.
Delano M. Lantz, quire 01)
Delano M. Lantz & Associates
4 North Hanover Street
Carlisle, PA 17013
(717) 448-8634 (phone)
Attorney for Defendant
Pennsylvania Electric Company
`j +rw
CERTIFICATE OF SERVICE
I certify that on this date I caused copies of the foregoing to be served on the individuals
listed below by standard U.S. mail:
Deanne O'Dell, Esquire
Carl Shultz, Esquire
Robert B. Hoffman, Esquire
WolfBlock, LLP
213 Market Street, 9th Floor
P.O. Box. 865
Harrisburg, PA 17108-0865
(717) 237-7160
Attorneys for Plaintiffs
Date: January 3Gj2009
Z - k 114-&-
Delano M. Lantz
f;a
'7? C?`?' . ?: i
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Patricia M. Hamill, Esquire (ID 48416)
Deborah J. Krabbendam, Esquire (ID 41856)
Conrad O'Brien Gellman & Rohn, P.C.
1515 Market Street, 16'h Floor
Philadelphia, PA 19102
(215) 864-9600 (phone)
(215) 864-9620 (fax)
Attorneys for Defendant Pennsylvania
Electric Company
TOD AND LISA SHEDLOSKY, COURT OF COMMON PLEAS
HUSBAND AND WIFE INDIVIDUALLY, CUMBERLAND COUNTY
AND ON BEHALF OF ALL OTHER
PERSONS AND ENTITIES SIMILARLY
SITUATED,
Plaintiffs No.: 08-7475 Civil Term
VS. Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
TO THE PROTHONOTARY:
ENTRY OF APPEARANCE
Patricia M. Hamill, Esquire and Deborah J. Krabbendam, Esquire of Conrad O'Brien
Gellman & Rohn, P.C. hereby enter their appearances on behalf of Defendant Pennsylvania
Electric Company in the above-referenced matter. Deborah J. Krabbendam, Esquire (ID 41856)
Conrad O'Brien Gellman & Rohn, P.C.
1515 Market Street, 16" Floor
Philadelphia, PA 19102
(215) 864-9600 (phone)
(215) 864-9620 (fax)
Attorneys for Defendant
C RAD O'BRIEN GELLMAN & ROHN, P.C.
Patricia M. Hamill, Esquire klu 48416)
Pennsylvania Electric Company
CERTIFICATE OF SERVICE
I certify that on this date I caused copies of the foregoing to be served on the individuals
listed below by standard U.S. mail:
Deanne O'Dell, Esquire
Carl Shultz, Esquire
Robert B. Hoffinan, Esquire
WolfBlock, LLP
213 Market Street, 9th Floor
P.O. Box. 865
Harrisburg, PA 17108-0865
(717) 237-7160
Attorneys for Plaintiffs
Date: January 30, 2009
Patricia M. Hamill
C"A
t11n:
NOTICE TO PLEAD
DELANO M. LANTZ & ASSOCIATES
By: Delano M. Lantz, Esquire
I.D. No. 21401
4 North Hanover Street
Carlisle, PA 17013
(717) 448-8634
CONRAD O'BRIEN, P.C.
By: Patricia M. Hamill, Esquire
I.D. No. 48416
Deborah J. Krabbendam, Esquire
I.D. No. 41856
1515 Market Street, Sixteenth Floor
Philadelphia, PA 19102
(215) 864-9600
TOD AND LISA SHEDLOSKY, HUSBAND
AND WIFE, INDIVIDUALLY AND ON
BEHALF OF ALL OTHER PERSONS AND
ENTITIES SIMILARLY SITUATED,
Attorney for Defendant
TO: Plaintiffs:
You are hereby notified to file a written
response to the enclosed Preliminary
Objections within 20 days from service
hereof or 4?wgment may be en ered
against BY•
Delano Mz, Esq
IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PA
Plaintiffs
V.
No. 08-7475 Civil Term
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
DEFENDANT PENNSYLVANIA ELECTRIC COMPANY'S
PRELIMINARY OBJECTIONS TO PLAINTIFFS' COMPLAINT
Pursuant to Pennsylvania Rule of Civil Procedure 1028, defendant Pennsylvania Electric
Company (Penelec) hereby asserts Preliminary Objections to the Complaint and in support
thereof avers as follows:
Penelec is a public utility that provides electricity service to customers in northern
and central Pennsylvania, including Cumberland County. Compl. at T¶ 4-5, 7 (Exh. A).'
2. On or about July 1, 1960 Penelec entered into a right-of-way (ROW) agreement
with Frank and Janet Hollar. The ROW agreement (Exh. B) allowed Penelec to construct,
1 Defendant has attached the exhibits listed below. Under the applicable principles set forth
below, all of the exhibits may be considered in deciding the issues raised by the Preliminary
Objections. Exhibits A through F are relevant to defendant's Preliminary Objection based on the
filed tariff doctrine (Section I(A)). Defendant's other Preliminary Objections can be resolved
based solely on Exhibits A and B - the Complaint and the ROW agreement attached thereto.
• Plaintiffs' Complaint (Exh. A) and the ROW agreement attached to the Complaint (Exh.
B). See Lawrence v. Pennsylvania Dept. of Corrections, 941 A.2d 70, 71 (Pa. Commw.
2007) (court reviewing preliminary objections must examine complaint and exhibits; if
there is a conflict, allegations of complaint need not be accepted as true).
• Opinions of the Public Utility Commission (PUC) (Exhs. C and D) in a proceeding the
Shedloskys previously brought before the PUC, as well as a petition they filed in that
proceeding (Exh. E); these may be considered on preliminary objections because
plaintiffs' Complaint (¶ 8) refers to and relies upon the PUC proceeding, and because the
documents are public. See, e.g., Floors, Inc. v. Altig, 963 A.2d 912, 918-19 (Pa. Super.
2009) (in ruling on preliminary objections court could consider stipulation of waiver of
liens filed with prothonotary; "`it is appropriate for a court to take notice of a fact which
the parties have admitted or which is incorporated into the complaint by reference to a
prior action"'); Solomon v. U.S. Healthcare Systems, 797 A.2d 346, 352 (Pa. Super.
2002) ("court may take judicial notice of public documents in ruling on a preliminary
objection in the nature of a demurrer"); Bykowski v. Chesed, Co., 425 Pa. Super. 595,
625 A.2d 1256, 1258 n. 1 (1993) (same; court could consider information from county
Recorder of Deeds office).
• Penelec's Tariff - Electric Pa. PUC No. 77, Rules 7-8 (Exh. F), which may be considered
on preliminary objections because the tariff is referenced in the Complaint (¶ 35) and
because "publicIrfiled tariffs have the force of law." Knipmeyer v. Bell Atlantic Corp.,
51 Pa. D. & CA' 225, 2001 WL 1179415, *4 n.5 (Pa. Com. Pl. May 22, 2001) (court
may consider utility's publicly-filed tariffs in ruling on preliminary objections).
2
maintain and operate an electric line consisting of poles and other equipment on the Hollars'
property in Shippensburg, PA. Compl. at ¶¶ 11, 12, 14.
3. After finalizing the ROW agreement, Penelec installed poles and a section of a
distribution line on the Hollar property, and has maintained the line to the present. Compl. at ¶¶
15-16.
4. Part of the ROW agreement is a pre-printed form. Blank spaces in the form were
filled in with specific typewritten provisions concerning the property and the right-of-way
covered by the agreement. Compl. at 113; ROW Agr. (Exh. B). The difference between the
printed form and the provisions specifically typed in for this transaction is obvious from the
document itself. (Exh. B).
5. A provision typed into one of the blank spaces on the Hollars' ROW agreement
states where the electric line will enter their property and provides: "Permission is also granted
to install stub pole and anchor on south side of USI I near the A.T. & T. Co. cable. If future
conditions require, upon proper request of Grantors, Grantee shall move said poles and anchors
to a location agreeable to Grantors." ROW Agr. (Exh. B).
6. The ROW agreement does not state who is responsible for costs associated with a
relocation of the poles and anchors. Compl. at ¶ 30.
7. Plaintiffs Tod and Lisa Shedlosky purchased the Hollar property in November
2005, with the intent of subdividing and developing the property. Compl. at ¶ 21. Mr.
Shedlosky is a commercial real estate developer. Shedlosky v. Pennsylvania Electric Co., PUC
Docket No. C-20066937, Opinion and Order, 2008 WL 4614198 (Pa. P.U.C. Aug. 7, 2008) (Exh.
C), clarifying Opinion and Order dated May 28, 2008 (Exh. D).
8. In connection with their plans to subdivide and develop the property, the
Shedloskys submitted a request to Penelec to relocate certain of its electric facilities located
within Penelec's right-of-way on the property. Compl. at T¶ 24-28.
9. As a public utility, Penelec is regulated by the Public Utility Commission (PUC),
Compl. at ¶ 7, and by the Public Utility Code, 66 Pa. Cons. Stat. § 101 et seq.
10. The Public Utility Code requires a public utility to furnish adequate, efficient, safe
and reasonable service and facilities, and to make changes in its service and facilities as
necessary for the accommodation of its patrons and the public. 66 Pa. Cons. Stat. § 1501.
11. Section 1501 further provides that "every public utility may have reasonable rules
and regulations governing the conditions under which it shall be required to render service." Id.
12. "A utility compiles its policies, rules, and regulations into its tariff, which it
submits to the Commission for review.... Once approved, the tariff provisions are legally
binding on both the utility and its customers." Kossman v. Pennsylvania Pub. Util. Comm'n,
694 A.2d 1147, 1151 (Pa. Commw. 1997). See 66 Pa. C.S. §§ 102, 1302, 1303.
13. "A tariff is a set of operating rules imposed by the State that a public utility must
follow if it wishes to provide services to customers. It is a public document which sets forth the
schedule of rates and services and rules, regulations and practices regarding those services. It is
well settled that public utility tariffs must be applied consistently with their language." PPL Elec.
Util. Corp. v. Pennsylvania Pub. Util. Comm'n, 912 A.2d 386, 402 (Pa. Commw. 2006). Parties
to a contract "may not agree to violate or disregard a filed tariff." Id. at 405.
14. "Penelec's tariff is, basically, a rulebook for all its business practices and
operations." Jarzab v. Pennsylvania Electric Co., 2008 WL 4145492 (Pa. P.U.C. July 17, 2008).
4
15. Penelec's tariff in effect at the time plaintiffs submitted their request was Tariff -
Electric Pa. PUC No. 77. Plaintiffs concede Rules 7 and 8 of the tariff "generally impose
relocation costs on the customer who requests the relocation." Compl. at ¶ 35. See Penelec
Tariff No. 77, Rules 7-8 (Exh. F).
16. Specifically, Rule 7 requires that "[a]ny request for electric service that requires
the extension, removal, relocation or change of the Company's Distribution Lines shall be
provided as set forth in this Rule 7." Tariff Rule 7. Under Rule 7(c):
9 An Applicant/Customer who makes a request that results in any "change to or the
modification of the Company's electric system" "shall pay all costs for such work
as specified in this Rule 7."
• Penelec shall perform a requested relocation or change "where such ... relocation
[or] change ... is acceptable to the Company."
• Penelec shall provide an estimate of costs and may require payment from a non-
residential person in advance.
• "The Company shall bill Non-Residential Customers or other person or entity the
total cost of the work, including the total direct and indirect costs."
Tariff Rule 7(c).
17. Rule 8 of the tariff provides that any payment by an Applicant/Customer under
the tariff constitutes taxable income and "shall be increased to include a payment by the
Applicant/Customer equal to the applicable taxes." Tariff Rule 8.
18. Pursuant to its tariff, Penelec issued an invoice to the Shedloskys in the amount of
$53,284.92 for the estimated cost of the relocation they requested. Compl. at IT 31-32, 35.
5
19. The Shedloskys allege they paid the invoice under protest, to move forward with
their project, and did not waive their rights to seek appropriate redress. Id. at ¶ 33.
20. Penelec completed the relocation work in August 2006. Id. at ¶ 34.
21. On October 5, 2006, the Shedloskys filed a complaint with the PUC seeking a
refund of the relocation costs, alleging that Penelec had unreasonably relied on the provisions of
its tariff in computing and collecting the costs of relocation and that Penelec's charges were
unreasonable in light of the ROW agreement. See id. at ¶ 8; PUC August 7, 2008 Opinion, at 2-
3 (Exh. Q.
22. The PUC held a full and fair evidentiary hearing, at which both parties were
represented by counsel, and considered the parties' briefs and arguments, including a Petition for
Clarification and/or Reconsideration filed by plaintiffs. Id.
23. "[T]he Commission held that it had no jurisdiction to interpret the ROW because
that was a real property claim which belonged in a court of general jurisdiction." Id. at 3.
However, the PUC expressly acknowledged that a court could conclude the controversy was
governed by Penelec's tariff, and "determined that, if the controversy were decided based on
Penelec's tariff, the relocation charge was appropriate." Id. at 3, 6.
24. Because the PUC found that Penelec's relocation charge did not violate its tariff,
it declined the Shedloskys' petition to order Penelec to refund the charge, stating: "The facts of
this case do not support a refund under the Tariff." Id. at 7. The August 7, 2008 Opinion and
Order directed the Secretary of the Commission to "mark this proceeding closed." Id. at 8.
25. Plaintiffs had the opportunity to seek judicial review of the PVC's decision, but
did not, and instead filed this purported class action in the Court of Common Pleas of
Cumberland County, Pennsylvania.
6
26. Plaintiffs' Complaint contains two counts for breach of contract, one on their own
behalf and one purportedly on behalf of the class.
27. In Count I, plaintiffs allege Penelec breached the ROW agreement by requiring
them to prepay the costs of relocating the electric facilities within the right-of-way, and claim
damages in the amount they paid Penelec, $53,284.92. Compl. at ¶¶ 48-49.
28. Count II alleges that other property owners may have entered into similar
agreements and been required to prepay relocation costs, and purports to assert a breach of
contract action on their behalf. Id. at ¶¶ 51-53.
1. Preliminary Objections in the Nature of a Demurrer: The Complaint is Legally
Insufficient Under Pa. R. Civ. P. 1028(a)(4)
A. The Complaint Is Legally Insufficient Because The Filed Tariff Doctrine
Bars Plaintiffs' Claims
29. Defendant incorporates the averments in paragraphs 1-28.
30. The well pleaded facts in the Complaint and the matters set forth in Exhibits A-F,
which are properly considered in evaluating the legal sufficiency of the Complaint, establish that
the filed tariff (or filed rate) doctrine applies as a matter of law and bars plaintiffs' claim for a
refund of the relocation charge Penelec assessed in accordance with its filed tariff.
31. As set forth above, "[p]ublic utility tariffs have the force and effect of law, and
are binding on the customer as well as the utility." PPL Elec., 912 A.2d at 402.
32. "Any attempt to vary the terms of the tariff, even by agreement with the customer,
is not effective." Knipmeyer v. Bell Atlantic Corp., 51 Pa. D. & C.0 225, 2001 WL 1179415,
*2 (Pa. Com. Pl. May 22, 2001).
33. This case is governed by the filed tariff doctrine, under which "customers are
charged with notice of filed tariffs, and utilities and customers must abide by the tariffs." Id.
7
34. The filed tariff doctrine "bars claims where a plaintiff essentially seeks different
rates or services from those set forth in a PUC tariff." Id. at *3 (noting that courts have applied
the doctrine to bar breach of contract and other claims); American Tel. & Tel. Co. v. Central
Office Tel., Inc., 524 U.S. 214, 222 (1998) (relied upon in Knipmeyer; filed rate doctrine barred
a claim that utility breached contract by failing to provide additional services which related to
subject matters covered by tariff but which the tariff did not require). See also 66 Pa. Cons. Stat.
§ 1303 (prohibiting utilities from charging any rates other than those specified in their tariffs); §
1502 (prohibiting discrimination in service).
35. In the Public Utility Code, the term "service" is defined "in its broadest and most
inclusive sense," to include "any and all acts done, rendered, or performed, and any and all
things furnished or supplied ... by public utilities." 66 Pa. C. S. §102. The Code defines "rate"
to include any "charge ... of any public utility ... made, demanded, or received for any
service." Id.
36. The relocation of poles on a landowner's property is a service provided for in
Penelec's tariff, and falls within the Code's definition of "service." See PUC Opinion and Order,
at 10 (May 28, 2008) (Exh. D).
37. The charges assessed for relocation services fall within the Code's definition of
"rate." As the plaintiffs argued to the PUC, "[t]his proceeding involved the payments demanded,
collected, and/or retained by Penelec ... pursuant to Penelec's Tariff. Such payments clearly
constitute a `rate' within the meaning of the Public Utility Code." Petition of Complainants Tod
and Lisa Shedlosky for Clarification and/or Reconsideration, at 4 n.2 (June 12, 2008) (citing
statutory and case support) (Exh. E). See also DiSanto v Dauphin Cons. Water Supply Co., 436
8
A.2d 197, 200-01 (Pa. Super. 1981) ("rate" includes every charge demanded for any service
furnished by a public utility, including the cost of water line installation).
38. Rules 7 and 8 of Penelec's tariff delineate, among other things, the procedure for
requesting a relocation or change, Penelec's obligation to charge the requesting party the costs of
any relocation or change it agrees to provide, and the items Penelec must include in the charge
(for non-residential persons, direct costs, indirect costs and taxes). Tariff Rules 7-8.
39. As a matter of law, Penelec cannot offer rates or services different from those
specified in its tariff. Knipmeyer, 2001 WL 1179415, *2-4. See also PPL Elec., 912 A.2d at 405
(where tariff states that interruptible service contracts are to be for a period of one year, utility
and other party to contract may not privately agree to limit the contract term to 6 months;
"[d]eviation from an approved tariff is not permitted under any pretext"); Philadelphia Suburban
Water Co v Pennsylvania Pub. Util. Comm'n, 808 A.2d 1044, 1050 (Pa. Commw. 2002) (free
fire hydrant service covenant in agreement between city and water utility for the sale of city's
water system violated statute proscribing utilities from receiving less than tariff rate for services;
"the fact that the tariff deviation is claimed to be a payment for an asset, such as in this case, or
for the grant of an easement, does not sanction the deviation"); Brockway Glass Co. v.
Pennsylvania Pub. Util. Comm'n, 63 Pa. Commw. 238, 437 A.2d 1067, 1070 (1981) (private
contract cannot vary terms of utility tariff as to either rates or notice requirements); Bell Tel. Co.
of Pennsylvania v Pennsylvania Pub. Util. Comm'n, 53 Pa. Commw. 241, 417 A.2d 827, 829
(1980) (contracts fixing rates are superseded by tariff rate in effect at time the service is
delivered).
40. When issues concerning utility services, rates and tariffs arise in damages actions,
both the courts and the PUC play a role. Elkin v Bell Tel. Co. of Pennsylvania, 491 Pa. 123,
9
420 A.2d 371, 374-76 (1980). As the PUC acknowledged, the PUC may not interpret right-of-
way agreements or award damages. However, the PUC is the appropriate forum to adjudicate
issues involving the "adequacy, efficiency, safety, and reasonableness of public utility services."
Id., 420 A.2d at 374-75.
41. The PUC has particular expertise with respect to utility services, deposits and
charges and the interpretation of tariffs. See, e.g., PPL Elec., 912 A.2d at 400, 402; Kossman,
694 A.2d at 1155 ("The Commission has broad discretion and authority `in determining what
expenses incurred by a utility may be charged to the ratepayers"') (internal citation omitted);
Optimum Image, Inc. v. Philadelphia Elec. Co., 410 Pa. Super. 475,600 A.2d 553, 557 (1991)
(matters relating to tariffs, necessity of equipment, deposits and public utility service "are within
the particular expertise of the PUC")
42. Under the doctrine of primary jurisdiction, issues within the jurisdiction and
expertise of the PUC are for the PUC to adjudicate. E.g., Elkin, 420 A.2d at 376-77; Optimum
Image, 600 A.2d at 555.
43. Here, the PUC has already decided - in the PUC action plaintiffs filed - that under
the Public Utility Code, the PUC's regulations and Penelec's tariff "Penelec acted appropriately
when it charged the Shedloskys for relocating the electric poles." PUC August 7, 2008 Opinion,
at 6-8 (Exh. C) (denying plaintiffs' petition for a refund of the relocation costs and ordering that
the proceeding be marked closed).
44. Plaintiffs did not appeal the PUC's decision that Penelec's actions were
appropriate under its tariff, and that decision is not subject to collateral attack in this Court.
Elkin, 420 A.2d at 376-77. See also 42 Pa. Cons. Stat. § 763 (Commonwealth Court has
10
exclusive jurisdiction over appeals from PUC); 66 Pa. Cons. Stat. § 316 (PUC decisions are
conclusive when not set aside or modified on judicial review).
45. After an administrative tribunal has determined the issues within its jurisdiction,
subsequent court proceedings must be "guided in scope and direction by the nature and outcome
of the agency determination." Elkin, 420 A.2d at 377 (affirming summary judgment for
telephone company on grounds that the PUC's determination that services were adequate was
conclusive). See also Optimum Image, 600 A.2d at 555 (bifurcated procedure approved in Elkin
provides for the PUC to decide the issue of liability initially, "after which the court of common
pleas considers the issue of damages, if appropriate").
46. As the PUC's decision confirms, Penelec's tariff imposes the costs of relocation
on the landowner who requests the relocation, not on Penelec. As a matter of law, the filed tariff
doctrine prohibits this Court from expanding the rights plaintiffs have under the filed tariff and
bars their claims. Knipmeyer, 2001 WL 1179415, *2-3 (sustaining preliminary objections and
dismissing class action complaint; telephone company's filed tariff barred plaintiffs' claims
based on alleged misrepresentations concerning the meaning of the term "non-published
telephone number," which was specifically defined in the tariff).
47. The damage award plaintiffs seek would constitute an "impermissible refund" of
the rate Penelec charged for relocation services pursuant to the terms of its filed tariff. Id. at *4.
48. For the reasons above the Complaint is legally insufficient because of the filed
tariff doctrine.
WHEREFORE, defendant respectfully requests that this Court sustain its preliminary
objections and dismiss the Complaint with prejudice.
11
B. Count I Fails to State a Legally Sufficient Claim for Breach of Contract
49. Defendant incorporates the averments in paragraphs 1-48.
50. Defendant's preliminary objections (in this Section I(B) and the following Section
1(C)) asserting that Counts I and II fail to state a legally sufficient claim for breach of contract
are independent from the filed tariff argument, and can be resolved based solely on the
Complaint and the ROW agreement attached thereto as an exhibit.
51. Under Rule 1019, "[t]he material facts on which a cause of action or defense is
based shall be stated in a concise and summary form." Pa. R. Civ. P. 1019(a).
52. Plaintiffs must plead material facts sufficient to sustain a cause of action against
defendant.
53. Count I of the Complaint purports to state a claim on behalf of the named
plaintiffs against Penelec for breach of contract.
54. "Three elements are necessary to plead properly a cause of action for breach of
contract: `(1) the existence of a contract, including its essential terms, (2) a breach of a duty
imposed by the contract and (3) resultant damages."' Williams v. Nationwide Mut. Ins. Co., 750
A.2d 881, 884 (Pa. Super. 2000).
55. As stated above, the ROW Agreement, in a provision typed into one of the blank
spaces on the form, states: "If future conditions require, upon proper request of Grantors,
Grantee shall move said poles and anchors to a location agreeable to Grantors." ROW Agr.
(Exh. B).
56. Plaintiffs concede in their Complaint that "[t]he Right-of-Way Agreement does
not expressly address who is responsible for the costs associated with relocation of Penelec
facilities." Compl. at ¶ 30.
12
57. Plaintiffs' Complaint neither pleads material facts nor cites to language in the
ROW agreement that would establish a duty on Penelec to pay the costs of relocating its poles at
plaintiffs' request in order to accommodate plaintiffs' wish to develop their property. Plaintiffs
"merely assert that the duty exists without demonstrating how the duty arises." Accordingly,
their breach of contract claim is "fatally flawed" and must be dismissed. Williams, 750 A.2d at
884 (affirming grant of demurrer and dismissal with prejudice of breach of contract claim against
insurers for failure to pay "undisputed amounts" of uninsured or underinsured motorist benefits;
plaintiffs did not plead material facts or cite to contractual language which would establish such
a duty). See also Boyd v. Rockwood Area Sch. Dist., 907 A.2d 1157,1165-66 (Pa. Commw.
2006) (affirming dismissal with prejudice of breach of contract claims; while defendant agreed in
contract to provide retiring employees with health insurance benefits, plaintiffs did not plead
facts sufficient to show they had a contractual right to receive the same benefits in effect when
they retired).
58. Plaintiffs have pled no facts to support their claim that Penelec's requirement that
they prepay the costs of relocation "is a breach of the Right-of-Way Agreement." See Compl. at
¶ 48.
59. Generally, under Pennsylvania law, "easements may not be modified, changed,
altered, or relocated without the consent of both the dominant and servient estates." Soderberg v.
Weisel, 455 Pa. Super. 158, 687 A.2d 839, 842 (1997).
60. When an easement agreement is silent as to who bears the cost of a relocation or
change in facilities, Pennsylvania courts impose the cost on the party who requested and will
benefit from the change. See e.g., id. at 845-46 (affirming a decree allowing landowners to
relocate a prescriptive easement but holding they were required to pay for the relocation because
13
it was solely for their benefit); Minard Run Oil Co. v. Pennzoil Co., 419 Pa. 334, 214 A.2d 234,
235 (1965) (where property owner sold defendants an easement for laying of a pipeline and
thereafter sought to compel sinking of pipeline so that it could build a road, defendants had to
allow the change but the owner had to pay for it). The Complaint clearly shows that plaintiffs
are the parties benefitting from the relocation of the electric facilities within the right of way.
Compl. at T¶ 24-28.2
61. A court may not add an allegedly missing term to an agreement unless it is
"'necessary to prevent injustice and abundantly clear that the parties intended to be bound by
such term."' Glassmere Fuel Service, Inc. v. Clear, 900 A.2d 398, 403 (Pa. Super. 2006)
(internal citation omitted).
62. Plaintiffs have not pled facts which would allow the Court to add a term to the
ROW Agreement requiring Penelec to pay the costs of relocating its poles at plaintiffs' request in
order to accommodate their land development desires. See id. (affirming grant of demurrer on
claim that gas station owner who agreed to convert station to a different name brand breached an
implied obligation to obtain financing); Kaplan v Cablevision of PA, Inc., 448 Pa. Super. 306,
671 A.2d 716, 720 (1996) (affirming grant of demurrer and dismissal with prejudice of class
action complaint against cable companies based on alleged breach of unstated contractual duty to
provide continuous uninterrupted service or unrequested credits for outages). See also Banks
Engineering Co. v. Polons, 561 Pa. 638, 752 A.2d 883, 886-87 (2000) (in breach of contract
2 According to the PUC, the practice of requiring parties who request changes to pay the cost of
those changes "is employed by all of our jurisdictional electric facilities and has been approved
by this Commission in order to prevent the costs of individual customer upgrades and extensions
from being passed on to the rest of a utility's ratepayers." PUC Opinion and Order, 9 (May 28,
2008) (Exh. D). See also Kossman, 694 A.2d at 1152 (affirming PUC's ruling that electric
utility properly charged commercial developer for service line extensions to his development; the
work was for developer's benefit and the costs should be borne by him as part of his investment
in his own property, rather than being included in the rate base for all of the utility's customers).
14
action, plaintiff's burden, "as the party filing the complaint, is to produce sufficient evidence of
entitlement to repayment to withstand a nonsuit.")
63. Based on the language of the ROW agreement, plaintiffs have no claim for breach
of contract. To any extent the provisions of the ROW Agreement could be considered
ambiguous, the ambiguity must be resolved in Penelec's favor. The Pennsylvania Superior
Court has held that ambiguous words in an easement are construed in favor of the grantee - here,
Penelec. See Amerikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 550-53 (Pa.
Super. 2004) (right of way agreement between mineral rights owner and pipeline owner which
preserved right to mine coal did not entitle mineral rights owner to require pipeline owner to
relocate pipes at its own expense so as to allow for surface mining).
64. For the above reasons Count I of the Complaint fails to state a legally sufficient
claim for breach of contract.
WHEREFORE, defendant respectfully requests that this Court sustain its preliminary
objections and dismiss Count I with prejudice.
C. Count II Fails to State a Legally Sufficient Claim for Breach of Contract
65. Defendant incorporates the averments in paragraphs 1-64.
66. Count II of the Complaint purports to state a claim on behalf of the putative class
against Penelec for breach of contract.
67. Since plaintiffs have not stated an actionable claim on their own behalf, they
cannot assert a claim on behalf of a putative class. Brown Estate v. Government Employees Ins.
Co., 40 Pa. D. & C.3d 275, 282 (Pa. Com. Pl. 1986) (plaintiff whose claims against defendant
have been dismissed "cannot litigate the claims of the class, and the class allegations must also
be dismissed"); Green v. Saturn Com., 2001 WL 1807390, *7 n.9 (Pa. Com. Pl. Oct. 24, 2001)
15
("Plaintiffs inability to sustain her individual claim ... would preclude certification of any
portion of this action. ,)3
68. Moreover, the grounds for dismissal of Count I set forth in paragraphs 48-64
above apply equally to Count II, and Count II should be dismissed on those grounds.
69. Plaintiffs have pled no facts to support their claim that Penelec has breached the
provisions of any agreement with any other property owner. See Compl. at ¶ 52.
70. Plaintiffs have not described or attached a single specific agreement between
Penelec and any other person, instead pleading only their own speculation that Penelec entered
into comparable agreements with other landowners and that other landowners requested and
were charged for relocation.
71. For the above reasons Count II of the Complaint fails to state a legally sufficient
claim for breach of contract.
WHEREFORE, defendant respectfully requests that this Court sustain its preliminary
objections and dismiss Count II with prejudice.4
3 The appellate courts have affirmed the dismissal of class action complaints when named
plaintiffs' claims fail as a matter of law. See Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa.
479, 854 A.2d 425 (2004) (trial court properly sustained preliminary objections and dismissed
class action complaint after finding that plaintiffs' breach of contract and other claims failed as a
matter of law); Kaplan, 671 A.2d at 718 (affirming dismissal of class action complaint with
prejudice after finding that plaintiff did not state an actionable claim).
4 Defendant seeks dismissal of the named plaintiffs' Complaint with prejudice, but recognize that
"[a] judgment entered on preliminary objections in a class action before certification shall bind
only the named parties to the action." Pa. R. Civ. P. 1715(b).
16
II. Preliminary Objection to Counts I and II for Lack of the Requisite Specificity in
Pleading - Pa. R. Civ. P. 1028(a)(2) and (3)
72. Defendant incorporates the averments in paragraphs 1-71.
73. Plaintiffs have failed to meet the specificity requirements of Rule 1019(a), and
their Complaint should therefore be dismissed under Rules 1028(a)(2) and (3). Corson v.
Independence Blue Cross, No. 2148, 2001 WL 1807399, *24 (Pa. Com. Pl. 2001) (sustaining
preliminary objections to breach of contract claim for insufficient specificity, where complaint
did not allege facts to support elements of claim and did not allege "exactly upon which contract
provision(s) they are relying to show defendant's breach.")
74. Plaintiffs failed to plead any material facts to support their claim that Penelec
could not charge plaintiffs for the costs incurred upon plaintiffs' request to relocate the electric
facilities to accommodate their desire to develop the property, or that Penelec was obligated to
relocate the electric facilities at its own expense where plaintiffs were benefitting from the
relocation.
75. Count II purports to be based on right-of-way agreements between Penelec and
other landowners, but plaintiffs do not attach a copy of any written agreements or explain why
they could not be obtained, providing another reason for dismissal of Count Il. See Pa. R. Civ.
P. 1019(1); Presbyterian Medical Center v. Budd, 832 A.2d 1066, 1071 (Pa. Super. 2003).
17
WHEREFORE, defendant respectfully requests that this Court sustain its preliminary
objections and dismiss Counts I and II for lack of the requisite specificity in pleading.
Respectfully submitted,
Delano M. Lantz, Esquire
I.D. No. 21401
DELANO M. LANTZ & ASSOCIATES
4 North Hanover Street
Carlisle, PA 17013
(717) 422-5874
Patricia M. Hamill, Esquire
I.D. No. 48416
Deborah J. Krabbendam, Esquire
I.D. No. 41856
CONRAD O'BRIEN, P.C.
1515 Market Street, Sixteenth Floor
Philadelphia, PA 19102
(215) 864-9600
Attorneys for Defendant
Pennsylvania Electric Company
18
EXHIBIT A
. 10
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND AND,
WIFE INDIVIDUALLY, AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES
SIN41LARLY SITUATED
Plaintiffs
V.
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
COMPLAINT
NOTICE TO DEFEND
No. 08 -'1y7s &tv&1. Terms
Class Action
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, you must take action within twenty (20) days after this complaint and notice
are served, by entering a written appearance personally or by attorney and filing in writing with the
court your defenses or objections to the claims set forth against you. You are warned that if you fail
to do so the case may proceed without you and a judgment may be entered against you by the court
without further notice for any money claimed in the complaint or for any other claim or relief
requested by the plaintiff. You may lose money or property or other rights important to yqn:
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. TIJIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
CUMBERLAND COUNTY BAR ASSOCIATION
32 South Bedford Street
Carlisle, PA 17013
1-800-990-9108
717-249-3166
TRUE COPY FROM RSCORD
In Testimony whereof, I h--re ur:to t,-.y hand
and the seal of said Court t Carlisla, Pa.
T ...r?,` *.. day o ......., oZec$
INTRODUCTION
1. The Plaintiffs Tod and Lisa Shedlosky (the "Shedloskys") bring this action as a class
action on behalf of themselves and a class of persons similarly situated to recover costs
unreasonably collected by Defendant Pennsylvania Electric Company ("Penelec"), for the
relocation of electric facilities located within rights-of-way on property owned by class members.
The charges are improper under the applicable right-of-way agreements ("ROW") between the
property owners and Penelec.
THE PARTIES
2. Plaintiffs Tod and Lisa Shedlosky are individual adults, husband and wife, with an
address of 6346 North Powderhorn Road, Mechanicsburg, Pennsylvania 17050.
Defendant, Pennsylvania Electric Company ("Penelec"), is a corporation organized
and existing under the laws of the Commonwealth of Pennsylvania with a place of business in
Reading, Pennsylvania.
4. Penelec owns and operates facilities for the transmission and distribution of
electricity in Cumberland County.
5. Penelec sells electricity to customers in Newburg, Shippensburg and territory
adjacent thereto within Cumberland County, Pennsylvania.
6. At all times material to this action, Penelec acted by and through its agents,
employees, servants, and workers, actual or ostensible, any and all of whom were acting within the
course and scope of their authority, agency, duties and/or employment.
7. At all times material to this action, Penelec was a public utility regulated by the
Pennsylvania Public Utility Commission ("PUC").
HAR:82898.2/S HE224-236835
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JURISDICTION AND VENUE
The PUC has determined, in prior litigation before it between the Shedloskys and
Penelec, that the issues raised in this matter are not within its jurisdiction but are within the
jurisdiction of the appropriate Court of Common Pleas. See Shedlosky v. Pennsylvania Electric
Company, PUC Docket No. C-20066937, Opinion and Order of May 22, 2008, as clarified by
Opinion and Order of August 7, 2008 ("PUC Opinion').
9. Venue of this action is proper in this Court under Rules 2156 and 2179, Pa.R.C.P., in
that a substantial part of the events and omissions giving rise to the claim occurred within
Cumberland County and the cause of action arose in this County.
10. The amount in controversy, exclusive of interest and costs, exceeds the sum
mandating compulsory arbitration.
FACTS
The Right of Wav
11. The Shedloskys own real property located at the corner of Walnut Bottom Road and
Airport Road in Shippensburg, Pennsylvania. The property is at the southeast corner of an
intersection created for access to a Wal-Mart shopping center.
12. On or about July 1, 1960, Penelec entered into a right-of-way agreement with Frank
and Janet Hollar (the "Hollars"), then the owners of the property now owned by the Shedloskys. A
true and correct copy of the Right-of-Way Agreement is attached hereto as Exhibit A and is
incorporated herein by reference.
13. The Right-of-Way Agreement utilizes a pre-printed form, drafted by Penelec, that is
filled in with the specifics applicable to the property and the requested right-of-way.
14. The Right-of-Way Agreement allowed Penelec to locate various equipment on the
Hollar property.
HAR:82898.2/SHE224-236835
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15. Following finalization of the Right-of-Way Agreement, Penelec installed on the
property a section of a 3-phase 23,000 volt distribution line and poles.
16. Penelec has maintained the distribution line on the property to this date.
17. As consideration for the rights granted to it in the Right-of-Way Agreement, Penelec
paid the Hollars $26.
18. Penelec paid no additional lease or rent fees to the Hollars, or their successors-in-
interest, for the use of the property for electric utility facilities.
19. Plaintiffs believe that the price terms in the Right-of-Way Agreement with the
Hollars is consistent with Penelec's standard price terms in securing rights-of-way.
20. Under the Right-of-Way Agreement, "upon proper request" of the property owner,
Penelec agreed to relocate the electric facilities that are located within the right-of-way on the
property. The standard for doing so under the Right-of-Way Agreement is "If future conditions
require ...."
The Shedloskys' Purchase of the Property
21. In November of 2005, the Shedloskys purchased the property. They did so with the
intent to subdivide and develop the property.
22. Through this purchase, the Shedloskys became the successors in interest to all rights
of the Hollars regarding the property, including rights under the Right-of-Way Agreement.
23. The Right-of-Way Agreement has been in effect at all times since the Shedloskys
purchased the property.
The Shedloskys' Relocation Request
24. In 2005 and 2006, the Shedloskys undertook efforts to subdivide and develop the
property.
HAR:82898.2/S HE224-23683 5
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25. The Shedloskys entered into an agreement with Rutters Farm Store under which
Rutters would purchase a portion of property, after subdivision, and locate a store at that
location.
26. As part of the subdivision and development process for the property, the
Shedloskys were required to obtain a highway occupancy permit from the Pennsylvania
Department of Transportation to accommodate a road expansion that was part of the
contemplated project.
27. The road expansion required the relocation of certain of Penelec's electric facilities
located within the right of way on the property.
28. On June 21, 2005, the Shedloskys submitted a Facilities Relocation Request to
Penelec, asking it to relocate certain of its electric facilities located within its right-of-way on the
property.
29. Penelec designed the work necessary to perform the Facilities Relocation Request
and prepared a cost estimate, which was $53,284.92.
30. The Right-of-Way Agreement does not expressly address who is responsible for the
costs associated with relocation of Penelec facilities.
31. In March of 2006, Penelec issued an invoice to the Shedloskys in the amount of
$53,284.92 for the estimated cost of the relocation project.
32. Penelec refused to relocate the electric facilities without prior payment of the invoice
amount.
33. In May of 2006, in the interest of moving forward with its project, the Shedloskys
paid the invoice amount, $53,284.92, under protest and without waiver or limitation of its right to
seek appropriate redress.
HAR:82898.21SHE224-236835
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34. Penelec completed the relocation work in August of 2006.
InAP WODriate Use of Penelec's Tariff
35. Penelec based its position that the Shedloskys were responsible for the relocation
costs on Rules 7 and 8 of the Tariff in existence in 2006, Tariff- Electric Pa. P.U.C. No. 77.
Those provisions generally impose relocation costs on the customer who requests the relocation.
36. The PUC, in the proceedings between the Shedloskys and Penelec, determined that
the Penelec Tariff was inapplicable but that, instead, the Right-of-Way Agreement controlled
Penelec's ability to charge the relocation costs to the Shedloskys. (On that basis, the PUC
determined that it lacked jurisdiction over the dispute.) See PUC Opinion.
37. Under the Right-of-Way Agreement, Penelec cannot charge the costs of facilities
relocation to the Shedloskys when the request is required by conditions at the property that have
arisen since execution of the Agreement.
CLASS ACTION ALLEGATIONS
38. The Plaintiffs bring this action as a class action pursuant to Pa.R.C.P. No. 1701 et
seq. on behalf of themselves and a class of persons similarly situated, defined as follows:
all individuals, proprietorships, partnerships, corporations,
institutions, and other businesses and commercial establishments
within the Commonwealth of Pennsylvania who: (1) either
themselves or by a predecessor-in-interest, had entered into a right of-
way agreement with Penelec permitting the locating of electrical
facilities within the right-of-way; (2) whose right-of-way agreements
contained terms with respect to the allocation of the costs of
relocating those electrical facilities substantially in the form contained
in the Shedloskys' right-of-way agreement; (3) who requested
Penelec to move electrical facilities located within the right-of-way
based on changed conditions since the execution of the right-of-way
agreement; and (4) who were required by Penelec to remit the costs,
as determined by Penelec, for the relocation of the electrical facilities
located in the right-of-way, all within the applicable four year statute
of limitations.
}{AR:82898.2/SHE224-23683 5
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39. The Plaintiffs believe that the class is sufficiently numerous that joinder of all class
members is impracticable. As of this filing, the Plaintiffs do not know the number of class
members or the identity of all such members.
40. There are questions of law and fact common to the class. These include the
following:
a. All class members own or owned property in an area in which Penelec
provided electric service or otherwise needed access to class members'
property as part of its provision of electric service.
b. All class members entered into agreements with Penelec allowing it to place
electrical equipment on property owned by the class members.
C. The Right-of-Way Agreements were created by Penelec using a form drafted
by Penelec.
d. The agreements had comparable provisions regarding the payment for
relocation of electrical equipment located within the right-of-way, and/or the
pertinent contract language was interpreted by Penelec to require application
of the tariff then in effect.
All class members paid Penelec relocation costs, such payment being
established by Penelec as a condition of the relocation of electrical facilities.
41. The common questions of law and fact predominate over questions affecting
individual class members. The Right-of-Way Agreements present legal issues that are not
dependent on the facts as applicable to any particular owner or occupant, except as relates to the
amount that the Defendant owes in damages.
42. This class action permits the class members to prosecute their common claims in a
single forum simultaneously, without unnecessary duplication. The class action provides an
efficient method whereby the rights of the Plaintiffs, class members, and Defendant can be
managed and resolved in a single adjudication.
43. The claims of the Plaintiffs, as the representative plaintiffs, are typical of the claims
of the class, in the same cause of action and common nucleus of operative facts applies to the
representative are coincident with, and not antagonistic to, those for the rest of the class.
HAR:82898.2/S HE224-236835
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44. Class treatment is a superior method for the fair and efficient adjudication of the
controversy described. The questions of law and fact common to the numbers of the class
predominate over any questions affecting individual members under the criteria set forth in Rule
1708, Pa.R.C.P.
45. Neither the size of the proposed class nor any particular difficulties likely to be
encountered in managing the class action make certification inappropriate.
46. This Court is an appropriate forum for resolution of this class action.
CAUSES OF ACTION
Count I: Breach of Contract on Behalf of the Named Plaintiffs
47. Plaintiffs incorporate by reference 111-45 of the Complaint in this matter.
48. Penelec's insistence that the Shedloskys prepay the costs of relocating the electric
facilities within the right-of-way is a breach of the Right-of-Way Agreement.
49. The Shedloskys have incurred damages in the principal amount of $53,284.92, that
being the amount they paid to Penelec, under protest, to enable the relocation to proceed.
WHEREFORE, based upon the foregoing, the Shedloskys request that this Court (a) enter
judgment in favor of the Shedloskys and against Penelec in the principal amount of $53,284.92,
together with interest; and, (b) grant any other relief deemed appropriate.
Count II: Breach of Contract on Behalf of the Class
50. Paragraphs 1, 3-10, and 37-45 of the Shedloskys' Complaint are incorporated as if
fully set forth herein
51. Plaintiffs believe that Penelec entered into Right-of-Way Agreements with other
property owners that contained comparable, if not identical, language to that in the Shedlosky
Agreements with respect to financial responsibility for relocation of Penelec electrical facilities
located on their properties.
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52. Penelec's insistence that the class members prepay the costs of relocating the electric
facilities within the right-of-way is a breach of the Right-of-Way Agreement.
53. The class members have incurred damages in amounts currently unknown to enable
the relocation of Penelec electrical facilities located on their properties to proceed.
WHEREFORE, based upon the foregoing, the Shedloskys request that this Court (a) grant
judgment in favor of the class members and against Penelec in an amount to be determined at trial;
(b) award the Shedloskys and the class members costs and attorney fees to the extent hereafter
determined to be permissible under applicable law; and (c) grant any other relief deemed
appropriate.
'Deanne O'Dell
Carl Shultz I
Robert B. Hoffman j
WolfBlock, LLP
213 Market Street, 9th Floo
P. O. Box 865
Harrisburg, PA 17108-0865
(717) 237-7160
rhoffman@woltblock corn
dodcll(cbwolfblock com
HAR:82898.2/SHE224-23683 5
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VERIFICATION
I, Tod Shedlosky, hereby verify, subject to the penalties in 18 Pa. C.S. § 4904 relating to
unworn falsification, that I am familiar with the factual averments set forth in the foregoing
Complaint, and that the factual averments therein are true and correct to the best of my
knowledge, information and belief.
Tod Shedlosky
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afterwet (oral., Cranterrv he"I.) grunt aa.d coltv.(- U. Grautce, itV auccesa,rry rad -igny, till: ngld tr. ruast.'uct, u.nintain and operr.ty an ela•etric
line conyi3ting of L?3-__. conductor., overlanad and undcrgrnua..I li taro
... .. 1Gh R Prolceli t•c .: iris, privala
cwanauntcutoh 343.3. gu )? ,pull. brace4 and acecevory appwratua and eQuipnu:ul Jeeme<I byGrauto<: to U.
accoavary tl.crufur• upou, over,
acrov3 and under the (candy of Graotom aiatated in tt.c_.. krtl?!1 •'. - 1 of ?y
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4itflltiAi•]d.(1f)1.... -....._.__....-_....... .._ ............ ..., Cotruunowo.(tla of I`--1y1vwniw, h<ruaded e. follow.:
?arllnrl? bv- the_ La?(Idw...aT..G}talfa(er liealts. .
s<.,,thrrlY trt higjttra•? ratttr._ USyil
e. a..rf. hr ttta_.l.antls of Baker acad. f3ttr.se11_
ttisttrty br GCe. Laads. of Nobel- Kelly -
5kid clectrJ_c litLe_cnherc-a lands. or GracLLnl•a froa.i ZJS1.1, ar:d cZ.1(.LrtiA,vZ. sb(:l•N<i5 laatd i of
Grantors to servta builcii:te aF Lha. Ne:+s-.Clironicle,
Pet•aission is also granted, to int
sall .ntlutj.N,ple_.an.(1._dtte fur V:1 ecth z;idc of U.1,11_
a(ar
Co a at Les 10 fll'tlire cored tion re' ate a aotl "
?;hali move fmLd mil a, and _ g { ?' _.r? i?q Fp( rCt=r res . c:' Grctntoc?
1 r r} c u a ( r , r a • Soot 0191 cif ntors?fur(her gruarC ani) cuu tt=' lE (? CSC: rn t[a•a t-•tr ?n tOC'. .. .
....I p. r. rl.•g.•. in cnn.tu iua. with the a(or(aaid electric (trail,. urg rights
line: •
1. Th,'41.t W I.-w; car .1/nr crmvcy in part , or rttl, the rigl.ls Rr anted 1--- ara•1 th, 1-thtic: --trurtc,l pur.u:.ot 11.•-ret,i ... nllauc
urih •, r•: ttad p.a,t.,•ulwrl/ la I,:Icld.nnc --p.uicf fire 0- Inarpuvc .rf furni.l.rn/( lcle(d.n,n: w.r.
2. TIu ng11, faun lime tr. time. w ir•stw11 a, caul hr ..-.1. ttdd:Uunnl >ppnrar-us aad -q Ui ...n.nt u: <:ra,.lec Wane 1 ata
3 The ngha u, remove call .>r soy past of aid It,,,. (25) .f't.. .ru of 1 In Irirn. rur a -..... ..e u
Irrcr, urnlcrhru:6 n...l ..rLcr ..l,nn,cl....
abut .•rc .uU.in
.ng ..,-d liuc; I.u.vad-1 ho.. cvtt. tt..c .Iwm:ag? r.,tl.rr Uu... far sad to . .tree.. cy,
r.
c,l ha ,rilc:n....,-.- rr. n.wmlwining ,aid hny d,:.13 be hn. 1. the ..id (:n tf'fhl k „£biit,1 to tiro t.r ., rr nr
--
The right to cnl.:r apma Grantnro' t.nd for the purposes herein wet forth.
1(c:rcving. ha we v.;r, to Grenton the right M culti vote the Rround Lctwecn Uae pole. or athrr au ppor4 ag atcu cturev of :aid lu.c; pro viJod
alms -uch ua: shall not :otl rvG;re with ur olret-L the right. her<,in created.
4E ,w .uatfereu-4 hatwcan Che parties Loreto that oot ou•ra thua ono lm` off pul<_? 31-11 I.c t,r.acd wo.l a-mta,ned ,%je- ut h. thi: rant
C;rwolet• ltiml: p-, aad Grantors .hall accept, the addit,(•..i aum oC. ! V c.a?•eJ . _ ??
( (
t!act tfC:. (:Fe Iat. of tl..y wV, a al ot. If 41'. ward wurt. iy n .t pitid or t-dercd. ath,,l wra t ).{ ,
Lilt ritihly 1-4 A.nvileg w lacrcia /(ranted vhall, aiUrnut farther net by tin: p-,ties la:reto, ecw.c ul" /canine and U..:reupou a (ira.ra.:e lwt H 1.<.
cl,c vat (uaa (..rthcr old.gati.m I.ercurrder.
The words -(; -t-- wnd "Graatc." .1-11 iuc(udc their heir., eaccutura, a<Inuni atrnlnr., su cccysory
IN t(-ITNF3S WfIEREOF, Gr-nta,a have and a.e?6m a+ t(.c rw n. .-b,.
duly caccutcd this (udcul.u rc thn d
y w.d /-.ac. brut abo t tteo
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.?ddresa.
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I(cecivy<I thi• Y .. <lay o__ 19 ?,..4 . f tl c al.. true 1 Crwulc U e nJ1u uu nl c. r .:Jet .arinu .hove
rta,nlu.na:.t .,. full _
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033,1
EXHIBIT B
j :, • A9
I\DENTCRE, trade this == L dn} •+( u .? 19 by and between
ra r- M1 w:o ai l Jt .e A rrri • r,rJ •• s i ri
t of
Cotniv of Cuatber.).a: d and < •,nuumw,•alth „f Yenn?vlvntita, liereinafter called Grsnl•,r> ao,f the
PENNSYLVANIA E P-17RIC t'itMPASN", a I'enr,}lvanis <-rp-,rsti„n hereinafter called flrants,•t.
N•ITX&tiSETII. That in con-iderati„o of the suni „f tine Dollar ttl.00, received from Grantee and the a.lditional conside-st ion herein-
after set forth, Grant„rs herel,} gr4nr and wovey to Grantee, its successors and itIssigns, the right to construct, inaintain and operate at; eleetric
line consisting of G, ?,. cunductors, overhead and underground lightning protective %eires, private
communication wires, guy., pu braces and scee"Qr} apparatus an.3 equipment deemed by Grwttet: to t,e necessary therefor, upon, over,
zeroes and under the lands of Gratitun, situated in the ,i+hFttyrtig, .rf ..iPFetrsbt »? County of
Gt;oil?el*1a[;rd Commonwealth of Peutisyiyaiia bounded as follows:
Northerly by t31C lt3i?S?rS. '-k .ri.:.,•eI'. Ck 7a:::i
Southerly by .iieiivax . rzula. Mill
Es.,wrly by t:,Q 13ands c.S Baker and
W,:sterl}' by tL:e l Ands oi• 11.Ajbt;.: ae i l y
5a,*.d."ectric line Qatera . l[d:i
Grantors to .verve built i-IC. X -the.::sits "run o.je.
res.! issior is also ;granted to i,;sta4 stub j ole and atlCb r coot: sl do l i 17:: Lear
t:.e :..T.& T. Co cable. If fau"re cc u_tic::s re,-, ire, ui-ol: j.roper reque t c_° Grantors, ;rante«.
S .all wove wind pQl6,1 and ott ,sC
t 10t;a ,+1j a wee- t uF '?F°t '?s ,!h f„luw ti i i
n• r hi,
1'•.r the roo,uk•latiuo • a,vr art raatora fu her gran ant colt } to riui ct i, t r > and :i • iK;,, K
:its,! la:%sh-tes in conntetiun with the aforesaid eleetric line:
1 1br right to h•aw still or convey in part, or all, the rights grxoted herein awl the fa••ilitieK cursstruct+' ! Iwr-uaitt !1wretu t„ ,,;h,rr
u•.ivie, knot particularly to telephone companies for the purpose of furnishing telephone service.
2 The right, from time to time, to u:atall oil %Wd line such i1,1 tional apparatus and equipment w, Crantce nia, •i,•u: tit ->:uc •,r
coocenu•tit.
3. The right to remove ail ca any part of said lint- (25)
1. The rlxltl o trini..o: or rent,te !reel' imdertauAi and tnwi +„•rru!uunr ilia- an; within tw tft"j. 1."t
i a31:• wtr,• -truog ,m ??id hile, prio"tir.i. however, a;4% dan>yg. ?u!iwr than for said trimming, wttin?'sXin.,4p to the pr.,pert% ,t
t.rnoro,r, rein«1 by -abl t4atr.•e iL ritAmIntrung Rit1 It;,-- -lmih lw tori,t• by the,sid t:raolee.
b. The right to enter upon Grantors" land for the purposes herein set forth.
Reservinst, however, to Grantors the right to cultivate the ground between the ;,ales or other supporting structures of itaid line: provided
that wch use shall trot ititerefete with or oblitruct the rights herein granted.
It i, understtxid between the patties berets, that n,,t more than ink, line of pool" shall lot erected and maintained pursuant lit this gr•rnt.
Grantee shall pay, ati+l Grantors shall accept, the ad.litional sum of ../...?''rrV? ... _. _......_ ....Dun&. (s.,47
w . m is n ut aid or tendered within the time spt•cified,
from the date if .1
.ithin(itt@ !A>< + agreement
l. il tta
the rights and privtiegen tercill grsnted shall, without further act by this parties hereto, ees.•e and determine Lad thereupon Grantee ahall he
relieved from any furtiher ubligstron hereunder.
The worths "Grantors" and "Granter" nhafi include their heirs, executon+, edrttinistrators, eucc+-ssurs and assignor as the ea ring t"..
IN WITNESS N•ITYREOF, Grantors have duly executed this Indenture the day. t±td )'iron- first also a 10 ittRn.
1 1 ? .
WITNESS: / r
?r.
:... s: . _... . ft-
... C {...... ..(SEAL)
. .... ..... ...... _......_............ .. ,F.......... /
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,'EALr
.{,1,tre>ur
3t: enst?:;r?, i a .
n A
Received tbt.% ?? 4 dn} of `4
nwatiurled in full. f
WITNESS:
rj
of the at,,.ye osoied Grantee the ad jili„oal con,id• rsliun above
-?,..,. _ , -?:-•E : ?. .. (SEAM
iSF:AI.t
(SEAL)
COMMONWEALTH OF PE NSYLVANIA,1
COUNTY OF
On this the ......_............;:. ?.. ...day of _ _..........?9........., before me,
the undersigned officer, personally appeared ...
known to me (or satisfactorily proven) to be the person whose names - subscribed to the within instrument,
and acknowledged that ,he;. executed the game for the purpofwts therein contained.
In witness whereof, I have hereunto set my hand and Notarial seal.
RECORDED-OFFICE Of TNt
' CLERK OF COURTS A R- ?hVvyl fblic
'
_V,
UI ::EEDS My commission expires NuTF'+Y atlsuc
0, I i s
L/
!1'I
CUMBERLAND
COUNTY
'6?, ?•?r?,' t? ? i' EMNI?L VANIA
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Un this, the clap of h, before nie, the undersigned otlieer. personally
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of the corporation by himself as
In Wimess Whereof. I hereunto set my hand and 0flicial Seal
Title of Odicer
EXHIBIT C
PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held August 7, 2008
Commissioners Present:
James H. Cawley, Vice Chairman, Recusing
Robert F. Powelson
Tyrone J. Christy
Kim Pizzingrilli
Wayne E. Gardner
Tod and Lisa Shedlosky
V.
Pennsylvania Electric Company
OPINION AND ORDER
BY THE COMMISSION:
C-20066937
Before the Commission for consideration and disposition is the
Petition for Clarification and/or Reconsideration of Commission's Order of May
28, 2008 (Petition) filed by Tod and Lisa Shedlosky (Shedloskys) on June 12,
2008.1 Pennsylvania Electric Company (Penelec) filed an Answer to the Petition
on June 23, 2008.
' By Opinion and Order entered June 25, 2008, in order to retain
jurisdiction of the matter, the Commission granted the Petition, pending review of
and consideration on the merits.
Historv of Proceedin
On October 5, 2006, the Shedloskys filed a Complaint with the
Commission alleging that Penelec required them to pay in excess of $53,000 for
the relocation of a pole located in a right-of-way on land owned by the
Shedloskys.2 The Complaint alleged that Penelec unreasonably relied on
provisions of its Tariff, Electric Pa. P.U.C. No. 77, for the computation and
collection of the costs. Further, the Shedloskys alleged that Penelec's charges
were unreasonable in light of the right-of-way agreement (ROW) between the
Shedloskys' predecessor in title to the subject real estate and Penelec.
On November 6, 2006, Penelec filed its Answer and New Matter,
admitting and denying various averments of the Complaint and questioning the
jurisdiction of the Commission with respect to interpretation of the ROW.
The Initial Hearing occurred on April 12, 2007. Both Parties were
represented by counsel. The Shedloskys presented one witness and introduced
five exhibits. Penelec presented four witnesses and submitted seven exhibits.
A transcript of the proceeding containing 108 pages was produced. Both Parties
timely filed both Main and Reply Briefs. The record closed on June 22, 2007.
2 The pole relocation required reconfiguration of Penelec's facilities,
four poles were moved and one new pole installed. Tr. at 32, 61.
2
By Initial Decision issued August 2, 2007, Administrative Law
Judge (ALJ) Wayne L. Weismandel dismissed the Complaint for failure to meet
the burden of proof. The Shedloskys filed Exceptions to the Initial Decision on
August 22, 2007. Penelec filed Reply Exceptions on September 4, 2007. By
Opinion and Order entered on May 28, 2008, the Commission held that it had no
jurisdiction to interpret the ROW because that was a real property claim which
belonged in a court of general jurisdiction. The Commission determined that, if
the controversy were decided based on Penelec's tariff, the relocation charge was
appropriate. The instant Petition seeks reconsideration of the Commission's
determination and a refund of the relocation charge.
Background
On July 1, 1960, Penelec entered into the subject ROW with Frank
and Janet Hollar. The ROW allowed Penelec to locate its poles on the Hollars'
property. Shedlosky Exh. 2. Mr. Shedlosky, who is a commercial real estate
developer, purchased the land identified in the ROW from the Hollars' estate and
planned to subdivide it. Shedlosky MB at 3. To receive approval for the
subdivision plan, Mr. Shedlosky had to acquire a Highway Occupancy Permit
(HOP) from the Pennsylvania Department of Transportation (PennDOT). The
HOP required the relocation of Penelec's poles on the property because they were
in the PennDOT defined right-of-way and restricted access to the property. Tr. at
7, 17; Shedlosky MB at 3. In March 2006, Mr. Shedlosky received Penelec's cost
estimate of $53,284.82 to relocate the poles. Shedlosky Exh. 3. When notified of
the ROW, Penelec responded that it nonetheless required payment for the pole
relocation pursuant to the terms of its tariff. Shedlosky Exh. 4. An invoice for
$53,284.82 was issued by the utility on May 12, 2006, and the Shedloskys paid the
amount under protest. Penelec completed the pole relocation in August 2006.
Shedlosky MB at 4.
3
Discussion
Initially, we note that we are not required to consider expressly or at
great length each and every contention raised by a party to our proceedings.
University of Pennsylvania v. Pa. PUC, 485 A.2d 1217, 1222 (Pa. Cmwlth. 1984).
Any argument that is not specifically addressed herein shall be deemed to have
been duly considered and denied without further discussion.
Section 332(a) of the Public Utility Code (Code), 66 Pa. C.S.
§ 332(a), provides that the party seeking a rule or order from the Commission has
the burden of proof in that proceeding. It is axiomatic that "[a] litigant's burden of
proof before administrative tribunals as well as before most civil proceedings is
satisfied by establishing a preponderance of evidence which is substantial and
legally credible." Samuel J. Lansberry, Inc. v. Pa. PUC, 578 A.2d 600, 602 (Pa.
Cmwlth. 1990).
The Code establishes a party's right to seek relief following the
issuance of our final decisions pursuant to Subsections 703(f) and (g), 66 Pa. C.S.
§ 703(f) and § 703(g), relating to rehearings, as well as the rescission and
amendment of orders. Such requests for relief must be consistent with
Section 5.572 of our Regulations, 52 Pa. Code § 5.572, relating to petitions for
relief following the issuance of a final decision. Section 5.572(a), 52 Pa. Code
§ 5.572(a) and (d), provides that:
(a) Petitions for rehearing, reargument,
reconsideration, clarification, rescission,
amendment, supersedeas or the like shall be in
writing and shall specify, in numbered
paragraphs, the findings or orders involved, and
the points relied upon by petitioner, with appro-
priate record references and specific requests
4
for findings or orders desired.
(d) Petitions for rescission or amendment may be
filed at any time according to the requirements
of section 703(g) of the act (relating to fixing of
hearings).
The standards for granting a Petition for Reconsideration were set forth in Duick v.
Pennsylvania Gas and Water Co., 56 Pa. P.U.C. 553 (1982), 1982 Pa. PUC
LEXIS 4 * 12.
A Petition for Reconsideration, under the provisions of
66 Pa. C.S. § 703(g), may properly raise any matters
designed to convince the Commission that it should
exercise its discretion under this code to rescind or
amend a prior order in whole or in part.
In this regard we agree with the court in the
Pennsylvania Railroad Company case, wherein it was
stated that:
Parties ... cannot be permitted by a second
motion to review and reconsider, to raise the same
questions which were specifically decided against
them ... what we expect to see raised in petitions for
reconsideration are new and novel arguments, not
previously heard or considerations which appear to
have been overlooked by the Commission.
Additionally, a petition for reconsideration is properly before the Commission
where it pleads newly discovered evidence, alleges errors of law, or a change in
circumstances.
In the instant Petition, the Shedloskys state that the Commission's
May 28, 2008 Opinion and Order held that it had no jurisdiction over the pole
relocation because the issue was subject to interpretation of the ROW. The
Shedloskys argue that, because the Commission acknowledged that the ROW took
precedence over Penelec's tariff in this instance, any monies charged pursuant to
the terms of the tariff were collected unlawfully and should be refunded. Petition
at 2-3.
In our May 28, 2008 Opinion and Order, we held the following:
This Commission is not the proper forum to resolve a
controversy which will determine property rights, that
is a matter for a court of general jurisdiction. See Anne
E. Perrige v. Metropolitan Edison Co., C-00004110
(July 11, 2003) (holding that, in a dispute regarding the
location of a right-of-way, the Commission had no
jurisdiction to interpret the meaning of the written
right-of-way). See also Fiorillo v. PECO Energy Co.,
Docket No. C-00971088 (September 15, 1999) (citing
Lou Amati/Amati Service Station v. West Penn Power
Co. and Bell Atlantic-Pennsylvania, Inc., Docket No.
C-00945842 (October 25, 1995) where the
Commission stated that real property issues such as
trespass and whether or not utility facilities are located
pursuant to valid easements or rights-of-way are within
the exclusive jurisdiction of the Courts of Common
Pleas of the Commonwealth).
Shedlosky v. Pennsylvania Electric Co., Docket No. C-20066937, slip op. at 6-7
(May 28, 2008). We also stated that, although we believed that the controversy
belonged in Common Pleas Court, we would nonetheless render a determination
based on the rules of Penelec's tariff in the event that the Court decided that the
matter should be adjudicated by this Commission. We found that, if Rules 7 & 8
of Penelec's tariff were controlling, the relocation charge was appropriate. Slip
op. at 10-15.
As noted above, if this controversy were to be decided pursuant to
the Code, this Commission's Regulations, and Penelec's Tariff, we would hold
that Penelec acted appropriately when it charged the Shedloskys for relocating the
electric poles. If we had found that Penelec's charge violated its Tariff, we could
order it to refund the relocation charge. The facts of this case do not support a
refund under the Tariff. Given our disposition of the Tariff-related issues, any
order made by this Commission to refund the relocation charge would necessarily
be based on an interpretation of the ROW. It is not within our mandate to issue a
determination regarding whether or not Penelec acted appropriately and in
accordance with the provisions of the ROW when it charged the Shedloskys for
relocating the poles. At this point, any refund must be sought in Common Pleas
Court.
We are not persuaded by the Shedloskys' argument that we erred by
failing to direct Penelec to refund the charge for relocating the electric poles;
THEREFORE,
IT IS ORDERED:
1. That the Petition for Clarification and/or Reconsideration of
Commission's Order of May 28, 2008 filed by Tod and Lisa Shedlosky on June
12, 2008, is granted as to the request for clarification, and denied as to the request
for reconsideration.
2.
proceeding closed.
That the Secretary of the Commission shall mark this
BY THE COMMISSION,
James J. McNulty
Secretary
(SEAL)
ORDER ADOPTED: August 7, 2008
ORDER ENTERED: August 7, 2008
s
EXHIBIT D
PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held May 22, 2008
Commissioners Present:
Wendell F. Holland, Chairman
James H. Cawley, Vice Chairman, Recusing
Tyrone J. Christy
Kim Pizzingrilli
Tod and Lisa Shedlosky C-20066937
V.
Pennsylvania Electric Company
OPINION AND ORDER
BY THE COMMISSION:
Before the Commission for consideration and disposition are the
Exceptions filed on August 22, 2007, by Tod and Lisa Shedlosky (Shedloskys) to
the August 2, 2007 Initial Decision of Administrative Law Judge (ALJ) Wayne L.
Weismandel. The Pennsylvania Electric Company (Penelec) filed Reply
Exceptions on September 4, 2007.
History of Proceeding
On October 5, 2006, the Shedloskys filed a Complaint with the
Commission alleging that Penelec required them to pay in excess of $53,000 for
the relocation of a pole located in a right-of-way on land owned by the
Shedloskys.l The Complaint alleged that Penelec unreasonably relied on
provisions of its Tariff, Electric Pa. P.U.C. No. 77, for the computation and
collection of the costs. Further, the Shedloskys alleged that Penelec's charges
were unreasonable in light of the right-of-way agreement (ROW) between the
Shedloskys' predecessor in title to the subject real estate and Penelec.
On November 6, 2006, Penelec filed its Answer and New Matter
(Answer), admitting and denying various averments of the Complaint and
questioning the jurisdiction of the Commission with respect to interpretation of the
ROW.
The Initial Hearing occurred on April 12, 2007. Both Parties were
represented by counsel. The Shedloskys presented one witness and introduced
five exhibits. Penelec presented four witnesses and submitted seven exhibits. A
transcript of the proceeding containing 108 pages was produced. Both Parties
timely filed both Main and Reply Briefs. The record closed on June 22, 2007.
Background
On July 1, 1960, Penelec entered into the subject ROW with Frank
and Janet Hollar. The ROW allowed Penelec to locate its poles on the Hollars'
property. Shedlosky Exh. 2. Mr. Shedlosky, who is a commercial real estate
developer, purchased the land identified in the ROW from the Hollars' estate and
planned to subdivide it. Shedlosky MB at 3. To receive approval for the
subdivision plan, Mr. Shedlosky had to acquire a Highway Occupancy Permit
(HOP) from the Pennsylvania Department of Transportation (PennDOT). The
' The pole relocation required reconfiguration of Penelec's facilities,
four poles were moved and one new pole installed. Tr. at 32, 61.
2
HOP required the relocation of Penelec's poles on the property because they were
in the PennDOT defined right-of-way and restricted access to the property. Tr. at
7, 17; Shedlosky MB at 3. In March 2006, Mr. Shedlosky received Penelec's cost
estimate of $53,284.82 to relocate the poles. Shedlosky Exh. 3. When notified of
the ROW, Penelec responded that it, nonetheless, required payment for the pole
relocation pursuant to the terms of its tariff. Shedlosky Exh. 4. An invoice for
$53,284.82 was issued by the utility on May 12, 2006, and the Shedloskys paid the
amount under protest. Penelec completed the pole relocation in August 2006.
Shedlosky MB at 4.
By Initial Decision issued August 2, 2007, ALJ Weismandel
dismissed the Complaint for failure to meet the burden of proof. Exceptions and
Replies thereto were then filed as noted above.
Discussion
We note that any issue or Exception, which we do not specifically
address herein, has been duly considered and will be denied without further
discussion. It is well settled that we are not required to consider expressly or at
length each contention or argument raised by the parties. Wheeling & Lake Erie
Railway Co. Y. Pa. PUC, 778 A.2d 785, 794 (Pa. Cmwlth. 2001), also see
generally, University of Pennsylvania v. Pa. PUC, 485 A.2d 1217 (Pa. Cmwlth.
1984).
In the Initial Decision, the ALJ made sixty-two Findings of Facts
and twenty-one Conclusions of Law. We shall adopt and incorporate herein by
reference the ALJ's Findings of Fact and Conclusions of Law, unless expressly or
by necessary implication, they are reversed or modified by this Opinion and Order.
3
Section 332(a) of the Public Utility Code (Code), 66 Pa. C.S.
§ 332(a), provides that the party seeking a rule or order from the Commission has
the burden of proof in that proceeding. It is axiomatic that "[a] litigant's burden of
proof before administrative tribunals as well as before most civil proceedings is
satisfied by establishing a preponderance of evidence which is substantial and
legally credible." Samuel J. Lansberry, Inc. v. Pa. PUC, 578 A.2d 600, 602 (Pa.
Cmwlth. 1990).
In the Complaint, the Shedloskys alleged that, because of the
existence of the ROW, Penelec's application of its tariff and the resulting charge
of $53,284.82 to relocate the poles, was unreasonable. ALJ Weismandel
determined that, because the ROW was silent regarding the cost responsibility for
pole relocation, "the situation as to payment responsibility is as though no right-
of-way agreement existed. In such a situation, the provisions of respondent's
Tariff control." I.D. at 12. Because Rules 7 and 8 of Penelec's Tariff provide that
if a customer requests relocation or modification of the company's facilities the
customer shall pay all costs for that work, the AD found that Penelec acted
pursuant to its Tariff in charging the Shedloskys for the pole relocation. Electric
Pa. P.U.C. No. 77. As such, the AD dismissed the Complaint.
The Shedloskys take exception to the ALJ's dismissal of the
Complaint. Exc. at 5. The Shedloskys agree with the AD that the Commission
has no jurisdiction to interpret the substantive provisions of an easement, but can
merely determine if a right-of-way agreement exists. Exc. at 5; I.D. at 12. The
Shedloskys argue that ALJ Weismandel, nonetheless, interpreted the ROW by
reasoning that the document's silence regarding relocation costs allowed him to
proceed to apply the Tariff as if the ROW did not exist. Id. The Shedloskys state
that the issue of why the parties made the decision in 1960 to leave the cost
responsibility issue silent is not within the Commission's jurisdiction to decide.
4
Exc. at 6. The Shedloskys contend that the issue can only be resolved by the
Court of Common Pleas through an application of basic common law contract
principles. Exc. at 7.
Penelec rejoins that no interpretation of the ROW has occurred here
because the agreement is completely silent as to cost and payment responsibility
for the facilities relocation request. R.Exc. at 6. Penelec agrees that the
Commission does not have jurisdiction to interpret rights-of-way. Penelec states
that the scope of the Commission's jurisdiction over a ROW includes determining
whether there are any asserted rights under the plain language of the agreement
that would impact a utility's obligations under the Code. R.Exc. at 7. Penelec
claims that it acted pursuant to its valid Commission-approved Tariff when it
charged the Shedloskys for the cost of the pole relocation. R.Exc. at 9-11.
Penelec states that, even if it had entered into an agreement to bear the cost of the
pole relocation, that agreement would be legally unenforceable as it would be
superseded by Rules 7 and 8 of its Tariff. R.Exc. at 12.
To support its claim that its Tariff terms would supersede the terms
of the ROW, Penelec cites Philadelphia Suhurhan Water Co. v. Pa. PUC, 808
A.2d 1044 (Pa. Cmwlth. 2002) for the proposition that a tariff trumps inconsistent
private contracts. R.Exc. at 12. In Philadelphia Suburban, a city sold its water
system to the water company in exchange for a sum of money and free fire
hydrant service. The agreement was then amended to provide that the city would
pay for the water, and the water company would make an equal donation to the
city's development fund. Subsequently, the utility obtained Commission authority
to purchase a water system from a different city wherein it would not charge for
the hydrant service for three years. The court held that both the original and the
amended agreement between the city and the water company violated 66 Pa. C.S.
§ 1303 as they effected a tariff deviation. Similarly, PPL Electric Utilities Corp.,
s
v. Pa. PUC, 912 A.2d 386 (Pa. Cmwlth. 2006) affirmed the Commission's
determination that the utility's early release of a customer from its interruptible
service contract violated its tariff when the tariff expressly stated that the contract
period was for not less than one year. In finding that 66 Pa. C.S. § 1303 did not
permit deviation from the approved tariff, the Commonwealth Court stated that the
fact that the change was by mutual consent was immaterial, as parties could not
agree to violate a tariff. 912 A.2d 386, 402-403.
The cases above involved utilities attempting to deviate from the
rates established by their filed tariffs. This Commission has exclusive jurisdiction
to regulate public utility rates within this Commonwealth. The Commission has
exclusive jurisdiction over matters involving the reasonableness, adequacy and
sufficiency of services rendered. Bell Telephone Co. of Pennsylvania v. Sanner,
375 A.2d 93 (Pa. Super. 1977); Behrend v. Bell Telephone Co. of Pennsylvania,
431 Pa. 63, 243 A.2d 346 (1968). The instant case differs from the cases above in
that the subject of the controversy here is, ultimately, real property and the rights
and obligations attached thereto. The Commission is a creature of statute and may
exercise only those powers that are expressly conferred upon it by the legislature.
Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1978). This
Commission is not the proper forum to resolve a controversy which will determine
property rights, that is a matter for a court of general jurisdiction. See Anne E.
Perrige v. Metropolitan Edison Co., C-00004110 (July 11, 2003) (holding that, in
a dispute regarding the location of a right-of-way, the Commission had no
jurisdiction to interpret the meaning of the written right-of-way). See also Fiorillo
v. PECO Energy Co., Docket No. C-00971088 (September 15, 1999) (citing Lou
Amati/Amati Service Station v. West Penn Power Co. and Bell Atlantic-
Pennsylvania, Inc., Docket No. C-00945842 (October 25, 1995) where the
Commission stated that real property issues, such as trespass and whether or not
utility facilities are located pursuant to valid easements or rights-of-way, are
within the exclusive jurisdiction of the Courts of Common Pleas of the
Commonwealth). Any attempt by this Commission to divine the intent of the
parties to the 1960 ROW regarding relocation costs, is tantamount to interpreting
the ROW. Because we have no jurisdiction to interpret the ROW, we will grant
the Shedloskys' Exception on this issue.
The Shedloskys' remaining Exceptions pertain to the Complainant's
obligations under Penelec's Tariff. The Shedloskys argue that even if the Tariff
governs this controversy, they still are not responsible for the cost of the pole
relocation. Alternatively, the Shedloskys argue that the relocation costs, as
calculated pursuant to the Tariff, were overstated by Penelec. As discussed above,
we find that the ROW takes precedence over the Tariff in this particular matter.
However, in the event the court decides that this matter should be adjudicated by
this Commission, we will render a determination on the Tariff interpretation issues
now for the sake of judicial economy.
As the administrative agency charged with regulating utilities under
the Code, the Commission is responsible for regulating utility rates and evaluating
tariffs, and as such, it has the particular expertise over such matters. PPL Elec.
Utils. Corp. v. Pa. PUC, 912 A.2d 386 (Pa. Cmwlth. 2006) (PPL Elec.); PP&L
Industrial Customer Alliance v. Pa. PUC, 780 A.2d 773 (Pa. Cmwlth. 2001).
Therefore, the Commission's expert interpretation of those issues is entitled to
great deference and should only be reversed if clearly erroneous. United States
Steel Corp. v. Pa. PUC, 850 A.2d 783, 789 (Pa. Cmwlth. 2004). The Commission
is required to look first to the four corners of a tariff and consider the entire
instrument as a whole. PPL Elec., 912 A.2d at 400.
A tariff is a set of operating rules imposed by the State
that a public utility must follow if it wishes to provide
services to customers. It is a public document which
sets forth the schedule of rates and services and rules,
regulations and practices regarding those services. It is
well settled that public utility tariffs must be applied
consistently with their language. 66 Pa. C. S. § 1303.
Public utility tariffs have the force and effect of law,
and are binding on the customer as well as the utility.
Pennsylvania Electric Co. v. Pennsylvania Public
Utility Commission, 663 A.2d 281, 284 (Pa.
Cmwlth.1995).
PPL Elec., 912 A.2d at 402. Tariff provisions approved by the Commission are
prima facie reasonable. Lynch v. Pa. PUC, 594 A.2d 816 (1991).
The Shedloskys except to the ALJ's conclusion that the pole
relocation request was governed by Tariff Rule 7, arguing that the express terms of
Penelec's tariff do not support such a conclusion. Exc. at 10. The Shedloskys
claim that a full reading of Penelec's Tariff reveals that Penelec has no Tariff
provision applicable to relocating poles from the land of a property owner who is
neither an "Applicant" nor a "Customer" for service. Exc. at 11. The Shedloskys
do not receive electric service from Penelec, nor do they wish to. Mr. Shedlosky
testified that the pole relocation was necessary to accommodate the subdivision of
the property and the subsequent sale of a portion of the property to Rutters Farm
Store. Tr. at 5-8.
The Shedloskys' argument that Penelec cannot bill them for pole
relocation because they do not qualify as customers or applicants under the terms
of the Tariff is disingenuous. Based on the information contained in the record as
developed thus far, the Mr. Shedlosky is a real estate developer who bought the
encumbered property, subdivided it, and sold it to commercial ventures. It is safe
to assume that the buyers will eventually become customers of Penelec as the
property lies entirely within Penelec's service territory. Penelec's Tariff
consistently takes the approach that any party seeking to modify the Company's
8
facilities must pay the cost of doing so, or, at least, provide a contribution to
defray the cost. This practice is employed by all of our jurisdictional electric
utilities and has been approved by this Commission in order to prevent the costs of
individual customer upgrades and extensions from being passed on to the rest of a
utility's ratepayers.
Tariff Rule 7-Extension of Company Facilities: System Upgrades,
provides, in pertinent part, as follows:
Regardless of the type of electric service provided to a
Customer under this Tariff, the Company's standard service
for delivery of electric energy to Customers shall be from the
requirements of this Tariff, the Company shall extend its
34,500 volt or less Distribution Lines to Applicants. Any
request for electric service that requires the extension,
removal, relocation or change of the Company's existing
Distribution Lines shall be provided as set forth in this
Rule 7.
Electric Pa. P.U.C. No. 77 (Supp.17) First Rev. pg. 28.
The tariff defines Applicant as:
Any person, corporation or other entity that (i) desires
to receive from the Company electric or any other
service provided for in this Tariff, (ii) complies
completely with all Company requirements for
obtaining electric or any other service provided for in
this Tariff, (iii) has filed and is awaiting Company
approval of its application for service, and (iv) is not
yet actually receiving from the Company any service
provided for in this Tariff. An Applicant shall become
a Customer for purposes of this Tariff only after it
actually starts receiving the applicable services(s) from
the Company under this Tariff.
Electric Pa. P.U.C. No. 77 (Supp. 17), First Rev. pg. 28.
The Shedloskys' argument regarding Rule 7 is three-fold: (1)
because pole relocation is not a service offered under Penelec's tariff; (2) the
definition of Applicant under Tariff Rule 7 does not apply; and (3) they did not
become Customers according to the Tariff once the poles were relocated. (Exc.
at 12).
Section c of Tariff Rule 7 is titled: Extension of Company
Facilities: System Upgrades: Relocation of, or Modification to, Company
Facilities; Service Interruptions and provides as follows:
If as a result of a Line Extension or any other request
that results in an expansion of the Company's
facilities, an increase in the Company's facilities,
construction of a system upgrade or any other change
to or the modification of the Company's electric
system, the Applicant/Customer shall pay all costs for
such work as specified in this Rule 7.
Electric Pa. P.U.C. No. 77 (Supp.17) at 38A (emphasis added). We agree that the
Shedloskys are not customers according to the terms of the Tariff.' However, the
relocation of a pole clearly qualifies as a modification to the Company's electric
system under Rule 7(c).3 As such, the Shedloskys meet the Tariff's definition of
an Applicant because they: (1) desired to receive a service provided for in the
Tariff from the Company; (2) complied with the Company's requirements needed
to obtain the pole relocation; (3) filed and were awaiting approval of an
z Customer - Any person, partnership, association, corporation, or
other entity (i) in whose name a service account is listed, (ii) who occupies or is
the ratepayer for any premises, building or structure, etc. or (iii) is primarily
responsible for payment of bills. A Customer includes anyone taking Full Service
or Delivery Service under this Tariff. Electric Pa. P.U.C. No. 77 (Supp. 20)
(second revised page 29).
3 We wholly disagree with Shedloskys' argument that any "service"
provided by the utility would be the subject of a rate schedule in the Tariff. Exc.
at 12. For example, no rate schedule exists in the Tariff for the various costs
associated with underground line installation, tree trimming, or brush clearance.
10
application to relocate the pole; and (4) were not receiving any other service
provided in the Tariff. R.Exc. at 13. The argument that Penelec's Tariff has no
provision which would apply to the Shedloskys has no merit, and the instant
Exception is denied.
The Shedloskys also argue that they had no choice but to submit a
request for pole relocation, pursuant to Rule 7. According to the Shedloskys, the
fact that the request and the payment for service were submitted under protest
means that these actions cannot be relied upon to find that Penelec properly
applied its tariff to cost responsibility. Exc. at 14. The ALJ based his decision on
the plain language of the Tariff and the record evidence, not on any implied
waiver or consent due to the Shedloskys' actions. As such, this Exception is
denied.
The Shedloskys argue that Penelec improperly charged the highest
amount possible without considering any cost-minimizing options. Exc. at 15.
The Shedloskys state that Penelec made no effort to reuse and/or refurbish existing
materials, did not give a discount for materials taken from Penelec's warehouse,
and did not give a credit for the salvage value of the poles that were removed. The
Shedloskys contend that Penelec's failure to minimize the overall costs of the
relocation resulted in an overstatement of the costs and was unreasonable under
Sections 1301, 1303, and 1304 of the Code, 66 Pa. C.S. §§ 1301, 1303, 1304.4
Penelec replies that its decision to use only new materials was
reasonable due to the nature of the job. R.Exc. at 19. Penelec testified that the
relocated line had to be built before the old line could be removed in order to
4 Section 1301 requires public utilities to charge just and reasonable
rates. Section 1303 requires a public utility to adhere to the rates published in its
tariff. Section 1304 forbids discrimination in rates.
11
maintain service to existing customers. R.Exc. at 19-20; Tr. at 34, 43; Penelec
R.B. at 16. Penelec further testified that the materials prices it used were based on
the stock average price at the time the estimate was created in March of 2006.
Penelec M.B. at 5; Tr. at 59, 63; R.Exc. at 20. Penelec noted that the actual cost of
the project exceeded the estimated costs paid by the Shedloskys by approximately
$5,500. Penelec did not bill the Shedloskys for the difference. Tr. at 67-68, 69-
70, Penelec Exhs. 2, 6.
Under the terms of the Tariff, Penelec is not required to provide any
discounts or credits. The Tariff provides that for the relocation of, or modification
to, Company facilities:
The Company may, in its sole discretion, request a
Non-Residential Customer or other person or entity to
pay to the Company in advance the estimated cost to
perform such work. The Company shall bill non-
Residential Customers or other person or entity the
total cost of the work, including the total direct and
indirect costs.
Electric Pa. P.U.C. No. 77 (Supp. 17) at 38A. The Shedloskys have failed to
prove that Penelec had a duty to apply any discount or credit to the project costs.
As such, Penelec did not violate the terms of its Tariff, our Regulations, or 66 Pa.
C.S. §§ 1301, 1303, or 1304 by not applying such credits.
The Shedloskys next argue that Penelec overstated the estimate by
ignoring costs that would have been incurred by Penelec, regardless of the
relocation and costs that are shared throughout its parent corporation, First Energy.
Exc. at 16. The Shedloskys claim that they were assessed $30,074 for labor which
was performed solely by Penelec's employees, $15,037 of which was for actual
labor while the other half was assessed for health care, pension, and payroll taxes.
Exc. at 16, Tr. at 72. The Shedloskys argue that Penelec's assessment of charges
12 -
such as "stores handling and administrative overhead" was improper because
Penelec would have incurred these costs irrespective of the relocation. Exc. at 17.
The Shedloskys request a refund of at least $3 5,460.31 plus interest for these
charges.
Penelec rejoins that the estimated labor charge to complete the pole
relocation was $21,699.98. R.Exc. at 20; Penelec Exh. 2. Penelec states that it
would not have incurred the specific relocation costs charged in this case but for
the Shedloskys' request to relocate the facilities. R.Exc. at 21.
"The Company shall bill non-Residential Customers or other person
or entity the total cost of the work, including the total direct and indirect costs."
Electric Pa. P.U.C. No. 77 (Supp. 17) at 38A. Tariff Rule 7 permits Penelec to
recover the estimated total direct and indirect costs which would include labor. As
such, Penelec's assessment of those charges was valid under its Tariff and
reasonable under the Code. The Exception on this issue is denied.
The Shedloskys argue that the $14,837.04 charged by Penelec for
federal and state tax liability on the $38,447.88 capital cost for the relocation did
not account for the benefit Penelec receives by filing its federal income taxes as
part of First Energy. Exc. at 17. The Shedloskys claim that Penelec's failure to
assess the actual tax liability it incurred or the benefit it will receive from
consolidated tax filing results in an overstated estimate and that they are owed a
refund. Id.
Penelec responds that it presented expert testimony that the
Shedloskys were charged the applicable taxes in effect at the time of their
relocation request. R.Exc. at 22; Tr. at 60-62, 81. Penelec posits that the
Shedloskys did not clearly articulate at the hearing that the Company failed to
13
apply a consolidated tax rate to the relocation charges. Penelec avers that, had the
Shedloskys done so, it "would have presented testimony that the tax charge
represented a dollar-for-dollar pass through of Penelec's actual tax liability or
actual taxes incurred and that the actual tax rates in effect at the time of the
Facilities Relocation Request did, in fact, reflect the appropriate consolidated tax
rate." R.Exc. at 22; Penelec R.B. at 19. Penelec further explained that, due to
federal Tax Reform Act of 1986, it was required to gross up contribution in aid of
construction (CIAC) charges for the applicable tax effects, including the effects of
consolidated taxes. R.Exc. at 22, n. 6. Penelec states that, under the Act, CIAC
creates an incremental tax for Penelec and that Rule 8 of its Tariff was approved
as a vehicle to recover those taxes. Id.
Rule 8 of Penelec's Tariff provides:
8. Taxes on Applicant / Customer Advances
Any Applicant / Customer advance or other like
amount received from an Applicant / Customer under
this Tariff, under any contract executed under this
Tariff or any other prior tariff shall constitute taxable
income to the Company as defined by the Internal
Revenue Service and shall be increased to include a
payment by the Applicant / Customer equal to the
applicable taxes. Such payment for taxes associated
with such Applicant / Customer advance shall provide
for the effect of current tax obligations offset by the
present value of future tax deductions associated with
the facility(ies) to be provided by the Company. The
discount rate to be used for present value calculations
shall be the Company's Allowance for Funds Used
During Construction ("AFUDC") rate adjusted to a net
of tax basis. Payments for taxes associated with
Applicant / Customer advances shall not be discounted
since any refunds of Applicant / Customer advances
shall include a pro rata refund of amounts previously
collected for applicable taxes.
14
Upon review of the record evidence, we conclude that Penelec's
charge for applicable taxes was consistent with its Tariff Rules 7 and 8 and,
therefore, reasonable. Tr. at 81; Penelec Exh. 2. As such, the Shedloskys'
Exception on this issue is denied.
Conclusion
Based on the foregoing, we will grant the Shedloskys' Exception
regarding jurisdiction. However, because we do not have jurisdiction to interpret
the terms of the ROW, we must deny the Complainant's request for a refund as
based on the terms of the ROW. Having failed to prove that Penelec violated the
terms of its Tariff with regards to the charges assessed for the pole relocation, the
remaining Exceptions are denied; THEREFORE,
IT IS ORDERED:
1. That the Exceptions of Tod and Lisa Shedlosky are granted
on the issue of the Commission's jurisdiction and denied in all other respects.
2. That the August 2, 2007 Initial Decision of Administrative
Law Judge Wayne L. Weismandel is adopted, in part, and reversed, in part,
consistent with this Opinion and Order.
15
3. That the Secretary of the Commission shall close this
proceeding.
BY THE COMMISSION,
James J. McNulty
Secretary
(SEAL)
ORDER ADOPTED: May 22, 2008
ORDER ENTERED: May 28, 2008
16
EXHIBIT E
BEFORE THE
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Tod and Lisa Shedlosky
V.
Pennsylvania Electric Company
Complainants
Docket No. C-20066937
Respondent
COMPLAINANTS' PETITION FOR
CLARIFICATION AND/OR RECONSIDERATION
Tod and Lisa Shedlosky (collectively, "Shedloskys" or "Complai.
submit this Petition for Clarification and/or Reconsideration ("Petition") in acc*da a with 52
Pa. Code § 5.572 in regard to the Commission's Opinion and Order entered in
captioned matter on May 28, 2008. This Petition satisfies the standard for relie& rth in
Duick v. Pennsylvania Gas and Water Company, 56 Pa. PUC 553 (December I % 10$5). See
also 66 Pa. C.S. §§ 703(f) and (g); 52 Pa. Code § 5.572.
While the Commission correctly ruled that this case involves the resolut on b f real
I
property rights and is not governed by the Pennsylvania Electric Company's (` tn 1 " or
"Respondent') pole relocation tariff provisions, the Commission failed to recd e
necessary corollary to its ruling: under the Public Utility Code, if, as the Co psi found,
Penelec's tariff does not govern the dispute, then the charges Penelec assessed ie Sib losk}
under color of its tariff were illegally collected and must be refunded to the
Penelec is free to demand repayment of these amounts under the teams 4 th? 1rivate right
of way agreement ("ROW"} that existed between the parties, and this dispute mRy ?v4ll be finally
resolved in civil court. But it would be illegal, to say nothing of unfair and unrso?nble, to
allow Penelec to keep the Shedloskys' payment when the only reason that they Ogrge4 to make
HAR:80842.3/S H F,Z24-21683 5
the payment (under protest) was because Penelec asserted (incorrectly as the
now determined) that its Tariff required that such payment be made prior to a
The Shedloskys respectfully request that the Commission affirm its initial de(
matter is governed not by Penelec's tariff butby the private ROW and, purse,
order Penelec to refund the amount it collected from them as in violation of a
excess of the "applicable" rate and unjustly and unreasonably charged.
Background
1. On October 5, 2046, the Shedloskys filed a Complaint with the {
alleging that, because of the existence of a ROW (that the previous owners of tt
Shedlosky owns entered into with Penelec), Penelec's application of its Tariff a
charge of $53,284.82 to relocate the Penelee poles on the Shedloskys' property,
unjust, and unreasonable. See Order of May 28, 2008, at 4. See also the Shedlc
15 to 29.
2. By Initial Decision issued August 2, 2007, ALJ Weismandel
Complaint for failure to meet the Complainants' burden of proof.
The Application of Penelec's Tariff Was Not Justified
3. The Order of May 28, 2008, agrees with the fundamental princip
Shedloskys' Complaint: Penelec had no legal right to apply Penelec's Tariff to
I
relocation.
i sion has
e relocation.
I at this
i tion 1312
)Jrder and in
that
resulting
Complaint,
the
in
ect pole
4. The principle conclusion of the Commission's Order is that the 4pm?ission has
"no jurisdiction to interpret the ROW," and that the ROW takes precedence ov I P let's Tariff
in this particular matter. See Order of May 28, 2008, at 6-7. In 'fact, this Co ssi held that
HAR 808423/SHE224-236835 -2- 1 I
the ROW deals with "real property and the rights and obligations attached there fr 0 opposed to
the regulation of public utilities within this Commonwealth. Id. Thus, the Cor#iio*n clearly
and expressly held that the Penelec's Tariff does not apply to the relocation of toe > eoelec poles
on the Shedlosky property. Id.
5. The Commission recognized that -
subject pole relocation - then Penelec's application of the Tariff to the
reasonable. However, that is not the situation presented by this proceeding.
Commission clearly held that it lacks jurisdiction over the subject pole relocation. P?cause this
Commission determined that the ROW takes precedence over Penelec's Tariff, re** had no
authorization to assert that Penelec's Tariff required the Shodloskys to remit polo rc**ation fees.
Accordingly, the Commission's discussion of Penelec's Tariff (on pages 7 to 1 I pf Oe Order of
May 28, 2008) is not relevant to this proceeding or any future proceeding befor*th? ?ourt of
Common Pleas!
The Shedloskys' Refund Request
6. The Order of May 28, 2008, fails to recognize that under the Pubic Polity Code,
if, as the Commission found, Penelec's Tariff does not govern the dispute, then
It is well settled that the Commission has exclusive jurisdiction to dete
instance matters within its regulatory powers. See Association of Com
Organizations for Reform Now v. Guarino, 99 Pa. Commw. 93, 512 A
Philadelphia Electric Co. a Human Relations Commission, 5 Pa. Com
A.2d 699 (1972). A Court of Common Pleas would not have jurisdicti
Commission's jurisdiction over the subject pole relocation (which has
answered by the Commission in the negative) or (b) the application of
the subject pole relocation (which also has already been answered by f
the negative).
the first
2 (1986);
9,290
(a) the
been
's Tariff to
emission in
HAReOUIYSM24-236835 -3-
Penelec assessed the Shedloskys under color of its Tariff were illegally
- and must be refunded to the Shedloskys.
7. Penelec relied exclusively on Sections 7 and 8 of Penelec's
collect payment from the Shedloskys_2 See Order of May 28, 2408, at 2-3, 7-1
Fxh. 4. In May 2006, the Shedloskys paid the requested amount to Penelec un
because they did not believe that Penelec's Tariff applied to the subject pole rt
May 28, 2008, at 3; Shedloskys' Complaint, 114.
8. Having found that Penelec's Tariff does not apply to the subject
the Order of May 28, 2008, eliminates Penelec's only presently cognizable just
demanding, collecting and retaining the payment of $53,284.82 from the
the Order of May 28, 2008, it was improper and illegal for Penelec to apply its
collected
to d nnand and
St 0 losky,
?r test
n. Order of
subject pole relocation. See Order of May 28, 2008, at 3-7. Thus, Penelec imp
illegally relied upon its Tariff to benefit itself (and the utility's investors) at the
Shedloskys. I
I
n for
Based on
o the
and
ie of the
9. Under these circumstances, a refund to the Shedloskys (with inte( eso is legally
required pursuant to Section 1312(a) of the Public Utility Code,.66 Pa. C.S. § 1 ji? 2(a), which
states, in the pertinent part:
. I
z
This proceeding involved the payments demanded, collected, and/or rey Penelec
demanded received and retained by Penelec pursuant to Penelec's Tariff Sic i payments
clearly constitute a "rate" within the meaning of the Public Utility Code. See 56 Pa. C.S.
§ 102; Allegheny Ludlum Corp. v. Public Utility Commission, 149 Pa C l Ob' 612
A.2d 604 (1992) (the term "rate" includes every fare, toll, charge, rental r Compensation
whatsoever of any public utilitymade, demanded, received for any servi ).
wut soaa2aSHE22a-23+5 - 4 -
if, in any proceeding involving rates, the Commission shall
determine that any rate received by a public utility was unjust or
an existing ad effective tariff of such public utility, the
Commission shall have the power and the authority to make an
order requiring the public utility to refund the amount of any
excess paid by any patron, in consequence of such unlawful
collection, within four years prior to the date of the filing of the
complaint, together with interest at the legal rate from the date c
such excessive payment. (emphasis added):
10. Penelec's demand, collection and retention of the $58,284.82
violates the Order of May 28, 2008. See 66 Pa. C.S. § 1312(a). The Order of
holds that the Commission lacks jurisdiction over this proceeding. Penelec
Commission-approved Tariff to demand, collect and retain $53,284.82 from
Because the Commission found that the ROW takes precedence over Penelec's
Tariff does not apply to the subject pole relocation. Accordingly, a refund to tb
(with interest) is legally required pursuant to Section 1312. See 66 Pa. C.S. § 1
(Commission may order refund when a rate violates any order of the Commissi
order a refund would cast a "blind-eye" towards the Commission's holding that
does not apply to the subject pole relocation.
11. Penelec's demand, collect and retention of the $58,284.82 paid
also in excess of the applicable rate contained in Penelec's Tariff. See 66 Pa. C
Penelec's Tariff contains a rate for certain pole relocations. However, the Com
Penelec's Tariff does not apply to the subject pole relocation. Thus, Penelec di+
collect and retain the payment from the Shedloskys by way of any authorized "g
its Tariff. Without any "applicable rate" for the subject pole relocation, the $58
demanded, collected and retained by Penelec for the subject pole relocation is v
2008,
its
Penelec's
ailure to
cc's Tariff
iloskys, is
312(a).
in held that
lemand,
ible rate" in
2
4s of the
IiAR:80842.3/SHE224-236835 -5-
"applicable rate" (of zero) as contained in Penelec's Tariff. Accordingly, a
Shedloskys (with interest) is legally required pursuant to Section 1312. See fib
1312(x) (Commission may order refund when a rate is in excess of the
in an existing and effective tariff of such public utility).
12. Further, it is not fair, just or reasonable for the Commission (or
Penelec's Tariff as justification to demand, collect, and/or retain the payment
Shedloskys. See also the Shedloskys' Exceptions, at 3, 5-8. Here, based on
May 28, 2008, Penelee improperly and illegally applied Sections 7 and 8 of its
collect, and/or retain a payment from the Shedloskys. Penelec would not prose
payment was made pursuant to Penelec's tariff. Tr. 14 CTenelec was adamant
willing to negotiate and their position was final'); See also Shedloskys' Comp)
But for Penelec's use of Penelec's Tariff to demand payment, Shedloskys wou]
the $58,284.82 to Penelec. Id. (The Shedloskys would have relied on their rig
the ROW.) By eliminating Penelec's only justification for demanding, eollecti
the payment of $53,284.82, the Order of May 28, 2008, makes it unjust and
Penelec to retain said payment from the Shedloskys. Under such ci
Shedloskys (with interest) is legally required pursuant to Section 1312. See 66
1312(a) (Commission may order refund when a rate is unjust or unreasonable).
a. S. §
rat e contained
}
to use
?m h e
Dni of
I
?xff f to demand,
un l ess
at ey were not
t, l l to 14.
n have paid
s a; set forth in
;* an
I
d retaining
asc le for
a i e l d to the
? 9 S. §
13. It is true that the Commission's ordering of a refund is within its is lion. But,
no case has been identified where this Commission had failed to order a refimd ' h a rate was
illegally demanded, collected and retained by a utility (i.e., unlawful revenues). P 1y put, this
Commission has the power to take action against Penelec for unjustified and ill4jall4liance, on a
Tariff. See 66 Pa. C.S. § 1312. When (as is the case here) utilities improperly aid I gaily use
HAP-"42.srsxM4-23Q35 -6-
their Tariffs to demand, collect, and/or retain payments, this Commission shout o refunds
under Section 1312. Id. See, e.g., Joseph A. Pepper v Pennsylvania Electric p y, 1980 Pa.
PUC LFMS 85,54 Pa. PUC 117 (March 28, 1980) (upon finding that Penelec' ple
dwelling tariff provision was improperly applied to Complainant, the Commissi n Bred a
refund); Richard Sanderman v. LP Water & Sewer Company, 1997 Pa. PUC LE XIS 1 12
(October 28, 1997) (utility ordered to refund to its residential water and sewer c is?rqers from
whom it collected rates for service to countervail the illegal collection
rates).
14. To allow Penelec to keep the Shedloskys' payment - when the lye reason that
the Shedloskys agreed to make said payment (under protest) was because Penel II ed
(incorrectly as the Commission has now determined) that its Tariff required t e u payment -
would mean that utilities could retain funds collected under color of its Tariff
s this
Commission has held that the Tariff was not applicable. This would put protect fan a utility's
investors above the protection of the public. By way of comparison, a refund in the se
circumstances would merely return the parties to the status quo ante - before e
requiring Penelec to refund the $53,284.82 paid by the Shedloskys to Pe nelec f
of the poles on the Shedloskys' property- This refund would not foreclose Pen(
repayment of any amounts due from the Shedloskys under the terms of the priv
Court of Common Pleas.
m - by
the location
?c m seeking
to W in the
f
I
HAR:8084231sHE224-23W5 -7-
Justification For Reconsideration
15. Despite agreement with the fundamental principle articulated in! 1011 skys'
Complaint, the Order of May 28, 2008, does not explicitly discuss the remedy r u ed by the
Shedloskys.
16. The impact of the holding in the Order of May 28, 2008, appears :o I a been
overlooked by the Commission. The Commission's Order of May 28, 2008, di xpressly
determine the issues related to Penelee's improper application of its Tariff to d collect,
and/or retain the payment from the Shedloskys. By failing,to expressly address , aid issues, the
Commission's Order of May 28, 2008, does not set forth adequate findings and } 1 ions (a)
to resolve the issues raised by the Shedloskys' Complaint and/or Exceptions; an Y Yo r, ) to
provide for meaningful appellate review.
I
17. Because said payment was demanded, collected, and/or retained y I le elec based
on inapplicable Tariff provisions, this Commission may also find that Penelec v $la te d Sections
1303 and/or 1304 of the Pennsylvania Public Utility Code, 66 Pa. C.S. §§ 1303, i3
i See
Shedloskys' Complaint, 11 15 to 29. E
WHEREFORE, for all of these reasons, the Shedloskys respectfully reqi I
t1
at the
Commission grant this Petition, order Penelec to refund (with interest) the $53 i4. 32 paid by
i
HAR-SM23JSHE224-236635 -8-
the Shedloskys to Penelec for pole relocation, and grant such other relief as is j
reasonable.
Respectfully submitted,
Daniel Clearfield, Esq.
Deanne M. O'Dell, Esq.
Carl R. Shultz, Esq.
WolfBlock, LLP
213 Market Street, 9th Fl
Harrisburg, PA 17101
(717) 237-7160
Dated: June 12, 2008 Attomeys for Tod and Lisa
HAR848423/SHE224-236835
EXHIBIT F
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
17)
First Revised Page 27
Superseding Original Page 27
GENERAL RULES AND REGULATIONS
Rule 5 - Deposits (continued)
exclusive judgment, until the Customer discontinues service or the Company determines that
the Customer has established a satisfactory payment record. Upon discontinuance of all
Company service and payment in full of all charges and financial guarantees, the Company
shall refund the deposit or deduct any unpaid amounts from the deposit and refund the
difference, if any, to the Customer. The deposit shall no longer accrue interest upon the
discontinuance of service.
Deposits from Residential Customers shall bear simple interest at the rate of the average of
one-year Treasury Bills for September, October and November of the previous year, payable
annually without deductions for taxes thereon unless otherwise required by law. The interest
rate shall become effective on January I of each year. All other Customer deposits shall bear
simple interest at the rate of six percent per annum, payable annually.
6. Right-of-Way
An Applicant (and/or any existing Customer seeking additional service)requesting service
from the Company shall grant to the Company, without charge, a right-of-way for all
Company facilities over, through, across and/or along the property owned or controlled by
the Applicant / Customer in order to provide electric service to the Applicant / Customer,
unless a valid and continuing right-of-way has already been granted to the Company by such
Applicant / Customer or any predecessor.
The Company shall not be obligated to provide any electric service to an Applicant/
Customer until the Company has received and/or obtained satisfactory rights-of-way and/or
permits from, but not limited to, the Applicant / Customer, applicable Government agencies,
railroad owners or other property owners. Any right-of-way or permit fees, either initial or
recurring, or other charges in connection with rights-of-way for providing service to an
Applicant / Customer, shall be paid for by the Applicant / Customer.
7. Extension of Company Facilities: System Upgrades
The standard service provided by the Company for delivery of electric energy to a Customer (C)
under this Tariff, whether Delivery Service or Full Service, regardless of delivery voltage,
shall be from overhead Distribution Lines, except as noted in any Rate Schedule. Subject to
(C) Change Attachment 5.5
Issued: January 3, 2002 Effective: April 12, 2002
PENNSYLVANIA ELECTRIC COMPANY
Electric Pa. P.U.C. No. 77 (Supp. 20)
Second Revised Page 28
Superseding First Revised Page 28
GENERAL RULES AND REGULATIONS
Rule 7 -Extension of Company Facilities: System Upgrades
the requirements of this Tariff, the Company shall extend its 34,500 volt or less Distribution
Lines to Applicants. Any request for electric service that requires the extension, removal,
relocation or change of the Company's existing Distribution Lines shall be provided as set
forth in this Rule 7. Applicants requesting a Line Extension shall, at the Company's
discretion, execute the Company's standard Line Extension contract. Any Customer served
by a Line Extension completed before the effective date of this Rule 7 shall be subject to the
terms and conditions of its existing Line Extension contract and the Company's then-
applicable Line Extension tariff, rules and regulations.
a. Line Extensions
(1) Definitions
Any capitalized term used in this Rule 7 that is not otherwise defined herein shall
have the meaning set forth in Rule 3 of this Tariff. For the purpose of this Rule 7,
the following definitions shall apply:
Applicant - Any person, corporation or other entity that (i) desires to receive from
the Company electric or any other service provided for in this Tariff, (ii) complies
completely with all Company requirements for obtaining electric or any other
service provided for in this Tariff, (iii) has filed and is awaiting Company approval
of its application for service, and (iv) is not yet actually receiving from the
Company any service provided for in this Tariff. An Applicant shall become a
Customer for purposes of this Tariff only after it actually starts receiving the
applicable service(s) from the Company under this Tariff.
Cash Advance - A refundable contribution in cash from an Applicant for those
costs associated with a Line Extension, increased for applicable taxes as specified
in Rule 8, which is held by the Company in a non-interest bearing account.
Contractor Costs - The amounts paid by the Company for work performed by a
contractor retained by the Company.
(C) Change
(C)
Issued: April 26, 2002 Effective: May 6, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
17)
First Revised Page 29
Superseding Original Page 29
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
Contributions in Aid of Construction ("CIAO") - A non-refundable contribution
in cash from an Applicant for those costs associated with a Line Extension, and/or
tree trimmin , brush clearance and related activities or those costs associated with
Temporary Service or the relocation of Company facilities, increased for applicable
taxes as specified in Rule 8.
(C)
Customer - Any person, partnership, association, corporation, or other entity (i) in
whose name a service account is listed, (ii) who occupies or is the ratepayer for any
premises, building or structure, etc. or (iii) is primarily responsible for payment of
bills. A Customer includes anyone taking Full Service or Delivery Service under
this Tariff.
Developer - The person or entity responsible for constructing and providing
improvements in a Development, including, but not limited to, streets, sidewalks
and utility-ready lots.
(C)
Development - A planned project which is developed by a Developer for electric
service set out in a recorded plot plan of five (5) or more adjoining unoccupied lots
for the construction of single-family residences, detached or otherwise, mobile
homes, or one (1) or more five-unit apartment houses, all of which are intended for
year-round occupancy, if electric service to such lots necessitates extending the
Company's existing Distribution Lines.
Distribution Lines - An electric supply line and related equipment of
untransformed voltage from which energy is delivered to one (1) or more Service
Lines.
Direct Labor Costs - The pay and expenses of Company employees directly
attributable to work performed, excluding construction overheads or payroll taxes,
workmen's compensation expenses or similar expenses.
Direct Material Costs - The purchase price of materials used, excluding related
stores (i.e. warehousing) expenses. In computing Direct Material Costs, proper
allowance shall be made for unused materials recovered from temporary structures,
and for discounts allowed and realized in the purchase of materials.
Line Extension(s) - The extension of the Company's distribution system from the
nearest suitable and available Distribution Line to the Service Line which will
provide service to the Customer.
Issued: April 26, 2002 Effective: May 6, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
17)
First Revised Page 29
Superseding Original Page 29
GENERAL RULES AND REGULATIONS
(C) Change
Issued: April 26, 2002 Effective: May 6, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp. 20)
Second Revised Page 30
Superseding First Revised Page 30
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities; System Upgrades (continued)
Non-Speculative Line Extension - A Line Extension for a Permanent Residential
Customer under which the Company has taken into account various factors
including, but not limited to, Customer location, rate classification, projected
Company revenues, permanency of use, primary residence and prospect of use by
future Customers, and has deemed the cost for the Line Extension to be reasonable
for the Company to incur.
Permanent Residential Customer - A Customer occupying a dwelling or mobile
home on a permanent foundation which is the Customer's primary residence
occupied year-round for normal living purposes and including: (i) electrical wiring
conforming with the National Electrical Code and the Company's service
installation policies; (ii) a permanently installed heating system; (iii) permanently
installed plumbing and sewage systems and (iv) thermal insulation meeting
minimum standards as contained in this Tariff in effect at the time service is
provided.
(C)
Private Right-of-Way - The right-of-way or easement for electric facilities on,
over, under, across and/or through real or other property owned by an individual or
entity which is not a governmental, municipal or other public body to provide Full
Service or Delivery Service.
Public Right-of-Way - The right-of-way or easement for electric facilities, subject
to reasonable permitting, on, over, under, across and/or through real or other
property owned by a governmental, municipal or other public body to provide Full
Service or Delivery Service.
Service Line - An electric supply line from the Distribution Line to the Customer's
metering point from which electric service is delivered to the Customer.
(C)
Speculative Line Extension - A Line Extension in which the Company has taken
into account various factors including, but not limited to, Customer location, rate
classification, projected Company revenues, permanency of use, primary residence
and prospect of limited use by future Customers, and has deemed the cost of the
Line Extension to be unreasonable for the Company to incur.
(C) Change
Issued: April 26, 2002 Effective: May 6, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
20)
First Revised Page 31
Superseding First Revised Page 31
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
Subdivider - The person or entity responsible for dividing a tract of land into
building lots, to form a Subdivision, that are not to be sold as utility-ready lots.
(C)
Subdivision - A tract of land divided by a Subdivider into five (5) or more
adjoining unoccupied lots for the construction of single-family residences, detached
or otherwise, or apartment houses, all of which are intended for year-round
occupancy, if electric service to such lots necessitates extending the Company's
existing Distribution Lines.
Temporary Electric Service - A Service Line, meter and/or other work supplied
by the Company to the Customer for electric service over a defined period, usually
less than one (1) year.
(2) Non-Speculative Single Phase Line Extension
Company Obligations
As used in this Rule 7, a span of conductor is approximately equal to 180 feet. The
Company shall construct, own and maintain all Line Extensions. The Company
shall provide an Applicant, at no charge, up to three (3) spans of conductor, three
(3) poles and related material on Public Right-of-Way for each Line Extension,
including the Service Line. The Company shall provide an Applicant, at no charge,
one (1) span of conductor and related material on Private Right-of-Way for each
Line Extension, including the Service Line, to serve a Permanent Residential
Customer. The number of spans provided to an Applicant / Customer at no charge
shall be referred to in this Rule 7 as the span allowance. The Company's
engineering layout shall be the sole basis used for determining the design of the
Line Extension and/or Service Line. Any additional Line Extension and/or Service
Line costs in excess of those costs assumed by the Company under this Tariff shall
be borne by the Applicant / Customer.
The Company shall not commence construction of a Line Extension and/or Service
Line until completion of all of the following:
(a) The Company's receipt and acceptance of an Application for electric service.
(C) Change
Issued: April 26, 2002 Effective: May 6, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
17)
First Revised Page 32
Superseding Original Page 32
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
(b) Execution by the Company and the Applicant / Customer of appropriate
agreements for electric service and/or Line Extensions, and the payment by
the Applicant / Customer of any and all associated costs or charges.
(c) The Applicant / Customer requesting the Line Extension and/or Service Line
has furnished to the Company rights-of-way on, over, across, under and/or
through the Applicant's/Customer's property that are necessary for the
construction, maintenance and operation of the Line Extension and/or Service
Line in accordance with Rule 6 of this Tariff and which are in form and
substance acceptable to the Company.
The Company shall be under no obligation to construct the Line Extension and/or
Service Line in the event it is unable to acquire all necessary rights-of-way and
other consents from any parties other than the Applicant / Customer, in such form
and substance acceptable to the Company.
Applicant Obligations
Where the Non-Speculative Line Extension and/or Service Line exceeds the, span
allowance, the Applicant / Customer shall make a CIAC or Cash Advance to the
Company equivalent to the Company's estimated Direct Labor Costs and Direct
Material Costs and/or Contractor Costs for construction of that portion of the Line
Extension and/or Service Line which is in excess of the span allowance. All Line
Extension and/or Service Line costs in excess of the span allowance shall be
charged to the Applicant / Customer.
(C)
In the event that an Applicant / Customer makes a Cash Advance to the Company
for construction costs in excess of the span allowance, refund(s) shall be made to
the initial Line Extension Applicant / Customer for each new Permanent Residential
Customer added to the initial Line Extension.' The refund(s) shall be calculated by
the average cost per foot of the Line Extension in excess of the span allowance.
Refunds shall be made only for Customer additions made within five (5) years from
completion of the initial Line Extension and the sum of any refund(s) shall never
(C) Change
Issued: January 3, 2002 Effective: April 12, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
17)
First Revised Page 33
Superseding Original Page 33
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
exceed the initial Line Extension Applicant's / Customer's Cash Advance. Any
balance from the Cash Advance remaining after five (5) years shall be retained by
the Company. In lieu of paying a Cash Advance to the Company, the Applicant /
Customer may elect to pay a CIAC to the Company.
(C)
If the Applicant / Customer requests, and Company approves, Line Extensions
and/or Service Lines may be installed underground. Where a Customer requests
underground service from overhead distribution facilities, the Company shall install
such service upon receipt of a contribution, in the form of a CIAC, from the
Customer equal to the amount the underground service costs exceed the overhead
service costs. These costs will not be part of any Cash Advance or refund to a Cash
Advance. The Company shall own, operate and maintain such underground
facilities. In such case, the Applicant / Customer shall provide all necessary
trenching, excavation, backfilling and grading in accordance with Company
specifications in the prevailing Service and Meter Installation Requirement
handbook, and shall bear all costs thereof.
Residential Customers electing to use conduit for their underground Service Line
shall pay all related costs associated with such conduit.
The Applicant / Customer shall perform or arrange and pay for all Company-
directed rough grading in accordance with the Company's specifications for
underground lines and facilities, as said specifications shall be modified by the
Company from time to time.
The Applicant/ Customer shall pay the cost of all tree trimming, brush clearance
and related activity associated with the establishment of the right-of-way for the
Line Extension and/or Service Line.
If Applicant / Customer requests any deviation from the Company's specifications,
the Company may, in its sole and exclusive discretion, approve such request. Any
Company-approved deviations from its construction practices shall be at the
Applicant's / Customer's sole expense.
(C) Change
Issued: January 3, 2002 Effective: April 12, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
20)
Second Revised Page 34
Superseding First Revised Page 34
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
(3) Underground Electric Service in New Residential Developments
(C)
Company Obligations
The Company shall install underground facilities inside new Developments;
however, should the lot owner or owners in a Subdivision desire underground
service, such service shall be provided by the Company if such lot owner or owners,
at their option, comply with Rule 7.a.(2) (Non-Speculative Single Phase Line
Extensions) and 7.a(4) (Speculative Single Phase and All Three Phase Line
Extensions and Service Lines).
(C)
The Company shall require for Developments which qualify under this Rule 7.a.(3)
(Underground Electric Service in New Residential Developments) and Rule 7.a.(4),
(Speculative Single Phase and All Three-Phase Line Extensions and Service Lines)
a CIAC or Cash Advance from the Applicant covering the Company's total
estimated direct and indirect costs associated with the Line Extension to the tract of
land being developed or within 100 feet of the boundary of Development. After the
connection of Customers, external to the Development, to the Line Extension, a
refund of the Cash Advance shall be made to the Applicant in accordance with Rule
7.a(4) (Speculative Single Phase and All Three-Phase Line Extensions and Service
Lines).
The Company or its agent shall install the necessary service-related facilities that
may include the installation of padmount transformers.
(C)
The Company shall, at the request of the Developer, install underground street
lighting lines at the time of the original request for service to the Development or
thereafter within the same Development. All street lighting shall be provided in
accordance with this Tariff.
The Company shall have the right to perfonr its own excavating and backfilling.
If the Company elects to perform its own excavating and backfilling, there shall be
no other charges to the Developer or to any other utility sharing the same trench.
(C) Change
Issued: April 26, 2002 Effective: May 6, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
17)
First Revised Page 35
Superseding Original Page 35
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
(C)
Developer Obligations
A Developer shall pay the cost of providing the Company with a copy of the
recorded development plot plan identifying property boundaries and with easements
satisfactory to the Company for occupancy by distribution, service and street
lighting lines and related facilities.
The Developer or its agent shall provide all excavating, rough grading and
backfilling required by the Company and shall meet the Company's specifications
as they may be in effect from time to time. The Company upon request shall
provide copies of the specifications to the Developer.
A Developer shall pay the Company for any necessary and additional costs incurred
by the Company as a result of the following:
(a) Installation of underground facilities that deviate from the Company's
underground construction standards and specifications if such deviation is
requested by the Developer.
(b) A change in the plot plan by the Developer for electric service after the .
Company has completed engineering for the project and/or has commenced
installation of its facilities.
(c) Physical characteristics such as, but not limited to, oversized lots or lots with
extreme setback.
(C) Change
Issued: January 3, 2002 Effective: April 12, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
17)
First Revised Page 36
Superseding Original Page 36
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
(C)
Exceptions
Whenever the Company or any affected person believes that the application of this
Rule 7.a.(3),(Underground Electric Service in New Residential Developments)
works an undue hardship, involves a physical impossibility, or is otherwise
inappropriate, they may request an exception from the Commission in accordance
with 52 Pa. Code §§ 57.81-57.88 by providing the Commission with the following:
(a) A copy of the recorded plot plan of the Development for which the exception
is being sought; and
(b) A letter petition setting forth the name of the Applicant, the location and
size of the development involved, the names of the electric utility and
telephone utility which shall provide service to that development, the date
on which construction began or shall begin, whether the development is a
new development or one phase in a development to be completed in several
phases, and whether facilities in the area surrounding the development have
been installed underground or overhead.
Upon the filing of an exception request, the Commission's staff shall notify the
utilities involved and the appropriate local government authority, review the facts
stated in the request and issue to the Applicant and the utility an informal written
report and decision within 180 days of the request for an exception. Failure of the
party requesting an exception to supply sufficient data within the 180 day period
shall result in the automatic denial of the request.
The Company or any affected person may appeal the informal decision rendered by
Commission staff by filing a letter petition with the Secretary of the Commission
stating the facts in question and requesting a hearing. All such appeals shall be
referred to the Commission's Office of Administrative Law Judge for hearing and
decision.
If an exception request initiated by an Applicant for electric service is granted, and
such Applicant thereafter desires underground electric service, 52 Pa. Code §§
57.82 and 57.83 shall apply as if no exception had been granted.
(C) Change
Issued: January 3, 2002 Effective: April 12, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Sapp.
17)
First Revised Page 37
Superseding Original Page 37
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
(4) Speculative Single Phase and All Three-Phase Line Extensions and Service
Lines
When the Company is requested to increase capacity, expand facilities or construct
Speculative Single Phase Line Extensions and/or Service Lines or Three-Phase
Line Extensions and/or Service Lines, the Company shall determine from the
circumstances of each case the nature and level of financing and/or guarantee of
revenue required of the Applicant / Customer prior to construction or installation of
Company facilities. The Company shall employ a five-year revenue guarantee in
order to offset the initial construction costs. The five-year revenue guarantee
includes five (5) years of forecasted distribution revenues less certain incremental
delivery costs including, but not limited to, distribution operation and maintenance
expenses, depreciation expenses, gross receipts taxes, state and federal income
taxes, and a reasonable return component. The Company may require the Applicant
/ Customer to make (i) a CIAC equivalent to the Company's total estimated costs
associated with the construction of facilities necessary to render service in excess of
the amount not covered by the revenue guarantee or (ii) a Cash Advance for the
total construction costs to render service. The Company shall refund all or a
portion of a Cash Advance previously provided by the Applicant in the event that
the Company's revenue analysis for any newly connected Non-Residential
Customer indicates that there are revenues in excess of the costs to provide service
to that newly connected Non-Residential Customer, within five (5) years from the
completion of the initial Line Extension.
Where an application for an overhead Line Extension for a tract of land being
developed or proposed to be developed, in whole or in part, for residential,
commercial or industrial purposes not covered by Rule 7.a.(3), (Underground
Electric Service in New Residential Developments) is received from an entity that
is not expected to be a Customer, the Company, prior to construction, shall require
payment of a CIAC or a Cash Advance from the Applicant covering the Company's
total estimated costs associated with the construction of said overhead extension (i)
to the tract of land being developed and (ii) within the boundary of the tract of land
necessary to serve prospective Customers in the tract.
(C) Change
(C)
Issued: January 3, 2002 Effective: April 12, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
20)
Second Revised Page 38
Superseding First Revised Page 38
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
After the connection of a Non-Residential Customer to the Line Extension, a refund
of the Cash Advance shall be made to the Applicant in accordance with this Rule
7.a(4) (Speculative Single Phase and All Three-Phase Line Extensions and Service
Lines).
Applications for Speculative or Three-Phase Line Extensions and/or Service Lines
shall be subject to all other Rules and Regulations of this Tarim.
In addition to the Line Extension costs described above, Non-Residential
Customers shall also provide, install and pay for conduit, cable, metering conduit
associated with their underground installation, including the Service Line, and such
other costs specified in the. Company's prevailing Service and Meter Installation
Requirement handbook.
The Applicant / Customer shall pay the cost of all tree trimming, brush clearance
and related activity associated with the establishment of the right-of-way for the
Line Extension and/or Service Line
b. Temporary Service
Temporary installations for Residential and Non-Residential Customers, requiring special
service, meter or other work shall provide electric service for a defined period, usually
less than one (1) year ("Temporary Service"). Temporary Service, such as for
construction purposes or exhibits of short duration, etc. shall be installed and removed at
the Applicant's / Customer's expense. The Company shall provide the Temporary
Service upon application from an Applicant / Customer. The Company shall provide the
Temporary Service, provided that the Applicant / Customer reimburses the Company for
all costs of installing and removing the service installation, including both material and
labor, less the salvage recovered from all materials and equipment removed after
termination of service. In all such cases, the Applicant / Customer shall make an advance
payment to the Company sufficient to cover the estimated charges for installation and
removal of the Temporary Service.
For Temporary Service for residential single-unit house construction where both the
temporary Service Line and meter can be transferred to the completed building, the
Temporary Service shall be provided by the Company upon the Applicant's / Customer's
payment of the Company's estimated costs to provide this service.
(C) Change
(C)
Issued: April 26, 2002 Effective: May 6, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
17)
Original Page 38A
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
c. Relocation of, or Modification to, Company Facilities; Service Interruptions
If as a result of a Line Extension or any other request that results in an expansion of the
Company's facilities, an increase in the Company's facilities, construction ofa system
upgrade or any other change to or the modification of the Company's electric system, the
Applicant / Customer shall pay all costs for such work as specified in this Rule 7.
Company Obligations
The Company shall remove, relocate or change the Company's facilities or temporarily
interrupt service to a Customer's premises, upon the Customer's request, where such
removal, relocation, change or interruption is acceptable to the Company.
The Company shall provide the Residential Customer with an estimate of the costs of
removing, relocating, changing or interrupting the Customer's service, and the
Residential Customer shall pay that amount to the Company prior to performing the
work.
The Company shall bill the Residential Customer based upon the Contractor Costs and/or
Direct Labor and Direct Material Costs associated with the removal, relocation or change
of distribution facilities or interruption, less an amount equal to any maintenance
expenses avoided as a result of such work.
The Company may, in its sole discretion, request a Non-Residential Customer or other
person or entity to pay to the Company in advance the estimated cost to perform such
work. The Company shall bill Non-Residential Customers or other person or entity the
total cost of the work, including the total direct and indirect costs.
After completion of the work, the Company shall bill or refund to the Non-Residential
Customer or other person or entity, the difference between the estimated cost and the
total direct and indirect cost of such work.
(C) Change
(C)
Issued: January 3, 2002 Effective: April 12, 2002
PENNSYLVANIA ELECTRIC COMPANY Electric Pa. P.U.C. No. 77 (Supp.
17)
Original Page 38B
GENERAL RULES AND REGULATIONS
Rule 7 - Extension of Company Facilities: System Upgrades (continued)
Customer Obligations
A Customer desiring the removal, relocation or change of Company facilities or
interruption shall submit a request to the Company.
The Company may accept or reject said request in its sole and exclusive discretion. If the
Company accepts said request, the Customer shall pay in advance the Company's total
estimated cost for any Customer requested temporary interruption in the Customer's
service due to construction, maintenance or other activities.
All Customers or other parties that request the removal, relocation or change of Company
facilities shall furnish, without expense to the Company, satisfactory rights-of-way
acceptable to the Company for the construction, maintenance and operation of the
relocated facilities.
Non-Residential Property Owner
A non-residential property owner shall not be relieved or excused from paying all costs
associated with the relocation or modification of the Company's facilities or temporarily
interrupt electric service to a Non-Residential Customer's property under this Rule 7(c)
if such relocation or modification of Company facilities or temporary service
interruption is the result of any order, rule, regulation or other direction to said property
owner from any governmental or public authority.
(C) Change
(C)
Issued: January 3, 2002 Effective: April 12, 2002
Rule 8 of Penelec's Tariff provides:
8. Taxes on Applicant / Customer Advances
Any Applicant / Customer advance or other like
amount received from an Applicant / Customer under
this Tariff, under any contract executed under this
Tariff or any other prior tariff shall constitute taxable
income to the Company as defined by the Internal
Revenue Service and shall be increased to include a
payment by the Applicant /Customer equal to the
applicable taxes. Such payment for taxes associated
with such Applicant / Customer advance shall provide
for the effect of current tax obligations offset by the
present value of future tax deductions associated with
the facility(ies) to be provided by the Company. The
discount rate to be used for present value calculations
shall be the Company's Allowance for Funds Used
During Construction ("AFUDC -) rate adjusted to a net
of tax basis. Payments for taxes associated with
Applicant Customer advances shall not be discounted
since any refunds of Applicant 'Customer advances
shall include a pro rata refund of amounts previously
collected for applicable taxes.
CERTIFICATE OF SERVICE
I certify that on this date I caused copies of the foregoing to be served on the individuals
listed below by first-class U.S. mail:
Deanne O'Dell, Esquire
Carl Shultz, Esquire
Robert B. Hoffman, Esquire
WolfBlock, LLP
213 Market Street, 9th Floor
P.O. Box 865
Harrisburg, PA 17108-0865
(717) 237-7160
Attorneys for Plaintiffs
Date: March ?_, 2009
13
.1 ,y
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the within matter for the next Argument
Court.)
Tod and Lisa Shedlosky, Husband and Wife,
Individually and on Behalf of All Other Persons
And Entities Similarly Situated,
Plaintiffs
v.
Pennsylvania Electric Company,
Defendant
No. 08-7475 Civil Term Class Action
1. State matter to be argued: Defendant Pennsylvania Electric Company's Preliminary Objections
to Plaintiffs' Complaint.
2. Identify all counsel who will argue cases:
(a) For plaintiffs:
Deanne O'Dell, Esquire
Carl Shultz, Esquire
Robert B. Hoffman, Esquire
WolfBlock, LLP
213 Market Street, 9' Floor
Harrisburg, PA 17108-0865
(b) For defendants
Delano M. Lantz, Esquire
Delano M. Lantz & Associates
4 North Hanover Street
Carlisle, PA 17013
Deborah J. Krabbendam, Esquire
Conrad O'Brien, P.C.
1515 Market Street, Sixteenth Floor
Philadelphia, PA 19102
C
r - :5 hi
3. 1 will notify all parties in writing within two days that this case has been listed for argument.
4. Argument Court Date: April 29, 2009
By;
DbIdTio M. Lantz
I. D. No. 21401
4 North Hanover Street
Carlisle, PA 17013
/?j? r 7 ?,,, T Attorney for Defendant Pennsylvania Electric Company
Dated:/ -'
lit. iv
CERTIFICATE OF SERVICE
I certify that on this date I caused copies of the foregoing to be served on the
individuals listed below by first-class U.S. mail:
Deanne O'Dell, Esquire
Carl Shultz, Esquire
Robert B. Hoffman, Esquire
WolfBlock, LLP
213 Market Street, 9th Floor
P.O. Box 865
Harrisburg, PA 17108-0865
(717) 237-7160
Attomeys for
Date: March 27, 2009
(3?
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND AND,
WIFE, INDIVIDUALLY, AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES
SIMILARLY SITUATED
Plaintiffs
V. No. 08-7475-Civil
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
WITHDRAWAL AND ENTRY OF APPEARANCE/CHANGE OF FIRM AND ADDRESS
TO THE PROTHONOTARY:
Please withdraw our appearance as counsel for Plaintiffs TOD AND ISA SHEDLOSKY et
al in the above-captioned case.
Robert B. Hoffinan
Deanne O'Dell
WolfBlock LLP
213 Market Street, 9th Floor
P. O. Box 865
Harrisburg, PA 17108-0865
(717) 237-7182
Please enter our appearance as counsel for Plaintiffs TOD AND LISA SHEDLOSKY et al in
the above-captioned case and send all Orders and Notices to me at the ad&ess/noted below.
l
Robert B. Hoffinan
Deanne O'Dell
Eckert Seamans Cherin an Mellott LLC
213 Market Street, 8th Floor
P. O. Box 1248
Harrisburg, PA 17108-1248
(717) 237-7182
_y
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND AND,
WIFE, INDIVIDUALLY, AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES
SIMILARLY SITUATED
Plaintiffs
V. No. 08-7475-Civil
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
CERTIFICATE OF SERVICE
I hereby certify that on April 23, 2009, I caused a true and correct copy of the foregoing
document to be served upon the following counsel of record by United States mail, postage prepaid:
Delano M. Lantz
DELANO M. LANTZ & ASSOCIATES
4 North Hanover Street
Carlisle, PA 17013
Patricia M. Hamill
Deborah J. Krabbendam
CONRAD O'BRIEN
1515 Market Street. Sixteenth Floor
Philadelphia, PA 19102
Robert B. Hoffman
Eckert Seamans Cherin Mellott
213 Market Street, 8th Flo
P. O. Box 1248
Harrisburg, PA 17108-1248
(717) 237-7182
FILE D--?) 10
OF THE PR I "I ' "'IDTAPY
2009 APP 23 Pr 1?: 07
4k IN
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND AND,
WIFE INDIVIDUALLY, AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES
SIMILARLY SITUATED
Plaintiffs
V. No. 08-7475- Civil
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
ANSWER TO PRELIMINARY OBJECTIONS
Plaintiffs answer the Preliminary Objections as follows:
1. The averments of ¶ 1 are admitted.
2. The averments of the first sentence of 12 are admitted. The ROW Agreement
speaks for itself.
3. The averments of 13 are admitted.
4. The ROW Agreement speaks for itself.
5. The ROW Agreement speaks for itself.
6. It is admitted that the ROW agreement does not explicit allocate relocation costs.
7. The averments of 17 are admitted.
8. The averments of 18 are admitted.
9. Paragraph 9 states a legal conclusion that requires no response. By way of further
answer, Penelec's status as a regulated utility is irrelevant to this action and the PUC has
determined that this matter "belong[s] " in this Court and is not within the PUC's jurisdiction.
HAR:90028.1 /SHE224-236835
10. Paragraph 10 states a legal conclusion that requires no response. By way of further
answer, Penelec's status as a regulated utility is irrelevant to this action and the PUC has
determined that this matter "belong[s]" in this Court and is not within the PUC's jurisdiction.
It. Paragraph 11 states a legal conclusion that requires no response. By way of further
answer, Penelec's status as a regulated utility is irrelevant to this action and the PUC has
determined that this matter "belong[s]" in this Court and is not within the PVC's jurisdiction.
12. Paragraph 12 states a legal conclusion that requires no response. By way of further
answer, Penelec's status as a regulated utility is irrelevant to this action and the PUC has
determined that this matter "belong[s]" in this Court and is not within the PUC's jurisdiction.
13. Paragraph 13 states a legal conclusion that requires no response. By way of further
answer, Penelec's status as a regulated utility is irrelevant to this action and the PUC has
determined that this matter "belong[s]" in this Court and is not within the PUC's jurisdiction.
14. Paragraph 14 states a legal conclusion that requires no response. By way of further
answer, Penelec's status as a regulated utility is irrelevant to this action and the PUC has
determined that this matter "belong[s]" in this Court and is not within the PUC's jurisdiction.
15. The averments of 115 are admitted. By way of further answer, the PUC has
determined that the allocation of relocation costs is controlled by the ROW agreement and not by
Penelec's tariff.
16. The tariff speaks for itself. By way of further answer, the PUC has determined that
the allocation of relocation costs is controlled by the ROW agreement and not by Penelec's tariff.
17. The tariff speaks for itself. By way of further answer, the PUC has determined that
the allocation of relocation costs is controlled by the ROW agreement and not by Penelec's tariff.
HAR:90028.1 /SHE224-236835
-2-
18. Plaintiffs admit that Penelec issued an invoice in the stated amount to the Shedloskys
and relied upon the tariff as the basis for doing so.
19. The averments of 119 are admitted.
20. The averments of 120 are admitted.
21. The PUC Complaint speaks for itself and is attached to Plaintiffs Brief Opposing
Preliminary Objections. By way of further answer, since Penelec used the tariff as its basis for the
cost assessment, the Shedloskys filed a complaint with the PUC. The Complaint asked the PUC to
find that the tariff did not govern how costs were to be allocated for the relocation and to find that
Penelec had violated certain PUC Code provisions by demanding payment under inapplicable tariff
provisions. The Shedloskys sought PUC determinations that the right-of-way agreement controlled
the parties' relationship and that the agreement required Penelec to assume the relocation costs.
Since Penelec had demanded and received payment by claiming a right under its PUC-regulated
tariff, the Shedloskys asked the PUC to order a refund.
22. The averments of 122 are admitted.
23. The PUC Opinion and Order of May 22, 2008 speaks for itself and is attached to
Plaintiffs' Brief Opposing Preliminary Objections. Penelec's recitation of the PUC's holding is
erroneous and denied. In particular, the following statement by Penelec is erroneous and not
supported by the citations noted: "the PUC expressly acknowledged that a court could conclude the
controversy was governed by Penelec' s tariff. Id. at 3.6." More accurately, the PUC noted Penelec's
arguments that the PUC "does not have jurisdiction to interpret rights-of-way" and that the tariff
governed, even to the extent of superseding contrary provisions in a right-of-way agreement. Id. at
HAR:90028.1 /SHE224-23683 5
-3-
5.1 The PUC agreed with Penelec's first point, which was essentially undisputed, but disagreed
with Penelec's last assertion. Rather than agreeing that the tariff controlled, in which case it would
have decided the matter, it held that the private agreement, i.e., the right-of-way agreement,
governed. It went on to state, consistent with its holding that the PUC could not interpret the right-
of-way Agreement, that "[t]his Commission is not the proper forum to resolve a controversy which
will determine property rights, that is a matter for a court of general jurisdiction". Id. at 6
(emphasis supplied). It went on: "Any attempt by this Commission to divine the intent of the
parties to the 1960 ROW ... is tantamount to interpreting the ROW. Because we have no
jurisdiction to interpret the ROW, we will grant the Shedloskys' Exception on this issue." Id. at 7.
The "Conclusion" reiterates that "we [the PUC] do not have jurisdiction to interpret the terms of the
ROW ...." Id. at 15. While ultimately adopting the Shedloskys' view that the ROW agreement
and only the ROW agreement could determine how costs for the relocation were to be allocated, the
PUC chose not to order a refund. Rather, the PUC decided to maintain the parties' status quo in
terms of the payments made and received, leaving for a court to finally determine the issue based on
interpretation of the ROW agreement.
24. Plaintiffs incorporate their answer to 123 above.
25. Paragraph 25 states a legal conclusion that requires no response. Plaintiffs admit
that they filed this action in this Court following the PUC's determination that the action
"belonged" in the Court of Common Pleas. By way of further response, Penelec had an equal right
to appeal and did not do so.
26. Plaintiffs admit that the Complaint presents two counts for breach of contract.
27. The Complaint speaks for itself.
A copy of this decision is attached hereto as Exhibit D.
HAR:90028.1 /SHE224-236835
-4-
28. The Complaint speaks for itself.
PRELIMINARY OBJECTION I(A)
29. Plaintiffs incorporate ¶¶ 1-28 above.
30. Paragraph 30 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
31. Paragraph 31 states a legal conclusion -- and an entirely irrelevant one --that
requires no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
32. Paragraph 32 states a legal conclusion -- and an entirely irrelevant one --that
requires no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
33. Paragraph 33 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
34. Paragraph 34 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
35. Paragraph 35 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
36. Paragraph 36 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
37. Paragraph 37 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
38. Paragraph 38 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
39. Paragraph 39 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
HAR:90028.1 /SHE224-236835
-5-
40. Paragraph 40 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
41. Paragraph 41 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
42. Paragraph 42 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
43. Paragraph 43 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
44. Paragraph 44 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
45. Paragraph 45 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
46. Paragraph 46 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
47. Paragraph 47 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
48. Paragraph 48 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 3-8.
PRELIMINARY OBJECTION I(B)
49. Plaintiffs incorporate 111-48 above.
50. Paragraph 50 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 9-10.
51. Paragraph 51 accurately sets forth a portion of Rule 1019(a).
52. Paragraph 52 states a legal conclusion that requires no response.
HAR:90028.1/SHE224-236835
-6-
53. Plaintiffs admit that Count I presents a claim for breach of contract.
54. Paragraph 53 states a legal conclusion that requires no response.
55. The ROW agreement speaks for itself.
56. Plaintiffs admit that the ROW Agreement does not expressly address allocation of
relocation costs.
57. Paragraph 57 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 9-10.
58. Paragraph 58 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 9-10.
59. Paragraph 59 states a legal conclusion that requires no response.
60. Paragraph 60 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 9-10.
61. Paragraph 61 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 9-10.
62. Paragraph 62 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 9-10.
63. Paragraph 63 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 9-10.
64. Paragraph 64 states a legal conclusion -- and an entirely incorrect one --that requires
no response. See Plaintiffs' Brief on Preliminary Objections, pages 9-10.
PRELIMINARY OBJECTION I(C)
65. Plaintiffs incorporate 111-64 above.
66. Plaintiffs admit that Count II presents a claim for breach of contract.
67. Paragraph 67 states a legal conclusion that requires no response.
HAR:90028.1 /SHE224-236835
-7-
68. Paragraph 68 states a legal conclusion that requires no response.
69. Paragraph 69 states a legal conclusion that requires no response.
70. Paragraph 70 states a legal conclusion that requires no response.
71. Paragraph 71 states a legal conclusion that requires no
::17
Robert B. Ho an
Deanne O'Dell
Eckert Seamans Cheri and Mellott, LLC
213 Market Street, 8th oor
Harrisburg, PA 17101
(717) 237-7182
rhoffman(a,eckertseamans.com
dodell ,eckertseamans.com
HAR:90028.1 /SHE224-23683 5
-8-
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND AND,
WIFE, INDIVIDUALLY, AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES
SIMILARLY SITUATED
Plaintiffs
V. No. 08-7475-Civil
Class Action
PENNSYLVANIA ELECTRIC COMPANY, :
Defendant
CERTIFICATE OF SERVICE
I hereby certify that on April 24, 2009, I caused a true and correct copy of the foregoing
document to be served upon the following counsel of record by United States mail, postage prepaid:
Delano M. Lantz Patricia M. Hamill
DELANO M. LANTZ & ASSOCIATES Deborah J. Krabbendam
4 North Hanover Street CONR.AD O'BRIEN
Carlisle, PA 17013 1515 Market Street. Sixteenth Floor
Philadelphia, PA 19102
Robert B. Hoffman
Eckert Seamans Cherin Mellott,
213 Market Street, 8th Fl or
P. O. Box 1248
Harrisburg, PA 17108-1248
(717) 237-7182
OF THE P
2009 APR 27 AM 9: 28
TOD AND LISA SHEDLOSKY,
HUSBAND AND WIFE,
INDIVIDUALLY AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES:
SIMILARLY SITUATED,
PLAINTIFFS
V.
PENNSYLVANIA ELECTRIC
COMPANY,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
08-7475 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO
PLAINTIFFS' COMPLAINT
BEFORE BAYLEY, J. AND EBERT, J.
ORDER OF COURT
AND NOW, this 01day of May, 2009, IT IS ORDERED that the preliminary objections
of defendant to plaintiffs' complaint, ARE DISMISSED.
r
By the (-:0'urtE?
? Robert B. Hoffman, Esquire
213 Market Street, 8th Floor
Harrisburg, PA 17101
For Plaintiffs
'..-/Patricia M. Hamill, Esq hire
1515 Market Street, 16 Floor
Philadelphia, PA 19102
,,/1elano M. Lantz, Esquire
4 North Hanover Street
Carlisle, PA 17013
For Defendant
C.bIt'es rrt--a,t LC
ttA/
Edgar B. Bayley, J. i
sal
CT .
CO)
IC'
:r
i
a I i i?
yy
TOD AND LISA SHEDLOSKY,
HUSBAND AND WIFE,
INDIVIDUALLY AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES:
SIMILARLY SITUATED,
PLAINTIFFS
V.
PENNSYLVANIA ELECTRIC
COMPANY,
DEFENDANT
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
: 08-7475 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT TO
PLAINTIFFS' COMPLAINT
BEFORE BAYLEY, J. AND EBERT, J.
OPINION AND ORDER OF COURT
Bayley, J., May 12, 2009:--
On December 24, 2008, plaintiffs "Tod and Lisa Shedlosky, husband and wife
and individually, and on behalf of all other persons and entities similarly situated," filed
a complaint against defendant Pennsylvania Electric Company. Since November,
2005, plaintiffs have owned real property at the corner of Walnut Bottom Road and
Airport Road in Shippensburg, Cumberland County. On July 1, 1960, defendant
entered into a Right-of-Way Agreement with the previous owners Frank Hollar and
Janet Hollar. Pursuant to the Agreement, and for a one time payment of $26,
defendant installed a section of a 3-phase 23,000 volt distribution line across the
Hollars' property to service another property - The News Chronicle. The Agreement
provides: "Permission is also granted to install stub pole and anchor on south side of
08-7475 CIVIL TERM
US11 near the A.T.& T. Co cable. If future conditions require, upon proper request of
Grantors, Grantee shall move said poles and anchors to a location agreeable to
Grantors." Plaintiffs herein subdivided their property and entered into an agreement
with Rutters Farm Store to purchase a part thereof on which to locate a store. Plaintiffs
were required to obtain a highway occupancy permit from the Pennsylvania Department
of Transportation to accommodate a road expansion for the project. The road
expansion required the relocation of defendant's electric facilities. Plaintiffs submitted a
Facilities Relocation Request to defendant. Defendant refused to relocate the electric
facilities without payment of $53,284.92, an amount that was based on its tariff.
Plaintiffs paid defendant that amount under protest and without waiver or limitation of its
right to seek appropriate redress. Claiming a breach of contract, plaintiffs aver:
Under the Right-of-Way Agreement, [defendant] cannot charge the cost of
facilities relocation to the [plaintiffs] when the request is required by
conditions at the property that have arisen since the execution of the
Agreement.
Plaintiffs instituted an action against defendant before the Pennsylvania Public
Utility Commission. The Commission concluded that it did not have jurisdiction to
determine allocation of the relocation costs because that requires interpreting the
provisions of the Right-of-Way Agreement which takes precedent over the tariff for
which jurisdiction lies in a court of common pleas. The Commission did, as a matter of
judicial economy, find that $53,284.92 was an appropriate charge under defendant's
tariff.
Defendant filed preliminary objections to plaintiffs' complaint which was briefed
-2-
08-7475 CIVIL TERM
and argued on April 29, 2009. Initially it seeks a demurrer, maintaining that the Filed
Tariff Doctrine bars plaintiffs' claim in that the Filed Tariff is legally binding and governs
the rate pertaining to relocation of the electric facilities, the Public Utility Commission
has already decided that under the tariff it appropriately charged plaintiffs the costs of
relocation, and the decision that the charge was appropriate under the tariff is not
subject to collateral attack. The Public Utility Commission did not decide that defendant
appropriately charged plaintiffs the cost of relocation. To the contrary, the Commission
refused to make such a determination on the basis that jurisdiction to determine
allocation of the relocation cost under the provisions of the Right-of-Way Agreement
lies in a court of common pleas. The Commission, as a matter of judicial economy in
case a court of common pleas would decide that the matter should be adjudicated
before it, determined that $53,284.92 was an appropriate charge under defendant's
tariff. Accordingly, the issue of the allocation of costs is properly before this court. The
demurrer to plaintiffs' complaint based upon the proceedings before the Public Utility
Commission will be denied.
Defendant further demurrers to plaintiffs' complaint maintaining that the Right-of-
Way Agreement does not impose on it the cost of the relocation of the electric facilities
that plaintiffs' requested, that Pennsylvania law governing easements precludes
plaintiffs' claims, and plaintiffs have not pled facts which would permit the court to add a
term to the Right-of-Way Agreement. Defendant cites three Pennsylvania cases for the
proposition that, "When an easement agreement is silent as to who bears the cost of a
-3-
08-7475 CIVIL TERM
relocation or change in facilities, Pennsylvania courts impose the costs on the party
who requested and will benefit from the change." In Minard Run Oil Co. v. Pennzoil
Co., 419 Pa. 334 (1965), Minard sold a pipeline company an easement through its
property for a six inch pipeline. A road crossed over the pipeline at two different places.
Plaintiff sought to further extend a road over the pipeline and because the nature of the
terrain it was necessary to sink the pipeline to a greater depth. Pennzoil, the current
owner of the easement, refused to further sink the pipeline. Plaintiff filed a suit in equity
to compel the work. The trial court ordered defendants to sink the pipeline to
accommodate the needs of plaintiff's road and placed the costs of the operation on the
plaintiff. Plaintiff appealed and the order was upheld. Minard is not authority for the
position stated by defendant in the present case because Minard did not involve the
interpretation of any contract between the plaintiff and defendant as to who would bear
the cost of changing the location of an easement.
In Gateway Motels, Inc. v. Duquesne Light Co., 347 Pa. Super. 619 (1985),
the Duquesne Light Company appealed from a judgment which ordered it to relocate its
electrical transmission system, at its own expense, on property owned by the plaintiff.
Plaintiffs' predecessor in title gave defendant an express easement to install an
overhead electrical transmission system on its property. The Agreement provides:
In the event the said Grantors [Monzos] should change the present
grade of the land where the poles supporting said transmission system
are erected by filling around said poles, the said Grantee [Duquesne], at
its expense, shall raise said poles as many times as may, in the judgment
of said Grantee, be necessary to provide adequate clearance for the
operation of said transmission system.
-4-
08-7475 CIVIL TERM
In the years following the creation of the easement changes were made in the
surface of the property by a land-filling operation designed to raise the elevation of the
land. From time to time, Duquesne raised its poles pursuant to the agreement.
Gateway Motel, Inc., who acquired the property from the former owners demanded that
Duquesne, at its own expense, either relocate above ground or place underground the
transmission line. Duquesne refused and Gateway filed a complaint in equity. The trial
court held that the easement agreement required the relocation of the transmission
lines and that the relocation was at the expense of Duquesne. On appeal, the Superior
Court of Pennsylvania noted:
Although it could be concluded that the parties may have
contemplated that the land was subject to future change, the only
relocation suggested in the clear language of the agreement is that the
supporting poles could be raised by Duquesne, as necessary, to provide
for adequate clearance in the event that the easement grantors changed
the grade of the land. There is no other language in the agreement that
touches upon the subject of a possible movement of the transmission line.
In particular, there is certainly no mention of any intent or contemplation
by the parties that the system be moved underground or that it be
relocated to any place on the property other than the area specifically
delineated on the drawing which was made a part of the agreement.
The Superior Court reversed the judgment of the lower court concluding:
In order to ascertain the nature of an easement created by an
express grant, the intention of the parties must be determined, if possible,
from the language of the instrument of conveyance. Merrill v.
Manufacturers Light and Heat Company, 404 Pa. 68, 185 A.2d 573
(1962). We conclude that the language employed in the agreement under
consideration in the instant case may not be construed to require the
Appellant to relocate the transmission lines in issue, at its own expense,
at the demand of the Appellee. The Appellee's request for relief should
have been denied.
-5-
08-7475 CIVIL TERM
The facts in the present case, unlike those in Gateway, are that the Right-of-
Way Agreement does touch on the subject of a possible movement of defendant's
transmission line by stating: "If future conditions require, upon proper request of
Grantors, Grantee shall move said poles and anchors to a location agreeable to
Grantors." Defendant has moved the electric facilities. The issue is over who pays the
cost of the Grantee performing its duty under the contract. Gateway is not authority
that supports defendant's position.
In Soderberg v. Weisel, 687 A.2d 839 (Pa. Super. 1997), the issue was whether
a court, through the use of its equitable powers, may compel the relocation of a
prescriptive easement. The Superior Court noted that prescriptive easements are quite
different from express grant easements and that express grant easements, once
acquired, are much more difficult to alter. In Soderberg, the Superior Court concluded
that a court may compel the relocation of a prescriptive easement if that relocation
would not substantially interfere with the easement holder's use and enjoyment of the
right of way and it advances the interest of justice. It upheld the order of the trial court
directing the relocation of the easement but reversed the order which provided that the
costs for doing so would be divided equally between the parties. The Court stated:
We can see no reason, logical or otherwise, to justify the Weisels'
contribution to the relocation of the easement that benefits solely the
Soderbergs.
Thus, Soderberg did not involve the interpretation of a contract granting an
express easement which contains language contemplating possible movement of the
-6-
08-7475 CIVIL TERM
easement in the future. Therefore, it does not support defendant's position that
Pennsylvania law governing easements precludes plaintiffs' claims.
Finally in seeking a demurrer defendant maintains that the Right-of-Way
Agreement does not impose on it the cost of the relocation plaintiffs' requested and that
plaintiffs have not pled facts which would permit the court to add a term to the
Agreement. In Hart v. Arnold, 884 A.2d 316 (Pa. Super. 2005), the Superior Court of
Pennsylvania stated:
To successfully maintain a cause of action for breach of contract
the plaintiff must establish: (1) the existence of a contract, including its
essential terms, (2) a breach of a duty imposed by the contract, and (3)
resultant damages. Gorski v. Smith, 812 A.2d 683 (Pa.Super.2002),
appeal denied, 579 Pa. 692, 856 A.2d 834 (2004) (citing Corestate Bank,
N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.1999)).
The fundamental rule in interpreting the meaning of a contract is to
ascertain and give effect to the intent of the contracting parties.
The intent of the parties to a written agreement is to be regarded as
being embodied in the writing itself. The whole instrument must be
taken together in arriving at contractual intent. Courts do not
assume that a contract's language was chosen carelessly, nor do
they assume that the parties were ignorant of the meaning of the
language they employed. When a writing is clear and unequivocal,
its meaning must be determined by its contents alone.
Murphy v. Duquesne University Of The Holy Ghost, 565 Pa. 571, 591, 777
A.2d 418, 429 (2001) (internal citations and quotation marks omitted). "In
ascertaining the intent of the parties to a contract, it is their outward
and objective manifestations of assent, as opposed to their
undisclosed and subjective intentions, that matter." Espenshade v.
Espenshade, 729 A.2d 1239, 1243 (Pa.Super.1999). Further, "specific,
express written language is not necessary for a particular
contractual intent to exist in an agreement. Rather, it is common for
the intent of contracting parties to be inherent in the totality of their
contract." Murphy, supra at 596, 777 A.2d at 432. "In the absence of
an express provision, the law will imply an agreement by the parties
to a contract to do and perform those things that according to
reason and justice they should do in order to carry out the purpose
-7-
08-7475 CIVIL TERM
for which the contract was made and to refrain from doing anything
that would destroy or injure the other party's right to receive the
fruits of the contract." Slater v. Pearle Vision Center, Inc., 376
Pa.Super. 580, 546 A.2d 676, 679 (1988) (describing what is known as
"doctrine of necessary implication"). "The meaning of an unambiguous
written instrument presents a question of law for resolution by the
court." Murphy, supra at 591, 777 A.2d at 430.
(Emphasis added.)
In Slater v. Pearle Vision Center, Inc., 376 Pa. Super. 580 (1988), the Superior
Court stated:
Thus, where it is clear that an obligation is within the
contemplation of the parties at the time of contracting or is
necessary to carry out their intentions, the court will imply it.
Gallagher v. Upper Darby Township, 114 Pa.Commw. 463, 539 A.2d 463,
467 (1988). This is true even where the contract itself is not
ambiguous. Id.; [Frickert v. Deiter Bros. Fuel Co., Inc., 464 Pa. 596
(1975)]. Since the doctrine of necessary implication serves not to instruct
the court as to which of two possible interpretations of a contract should
be adopted, but rather to allow the court to enforce the clear intentions of
the parties and avoid injustice, the court does not need to find an
ambiguity before it will employ the doctrine.
(Emphasis added.)
The interpretation of the Right-of-Way Agreement between plaintiffs and
defendant is a matter of law to be determined by this court. The contract provides that
"if future conditions require it, upon proper request of the Grantors, Grantee shall move
said poles and anchors to a location agreeable to Grantors." Defendant did move its
electrical facilities at the request of grantors for such a purpose. Plaintiffs have
adequately pleaded a cause of action for breach of contract in seeking a refund of the
amount they were forced to pay to defendant to perform that work.
-8-
08-7475 CIVIL TERM
For the foregoing reasons, the following order is entered.
ORDER OF COURT
AND NOW, this IL day of May, 2009, IT IS ORDERED that the preliminary objections
of defendant to plaintiffs' complaint, ARE DISMISSED.
Robert B. Hoffman, Esquire
213 Market Street, 8th Floor
Harrisburg, PA 17101
For Plaintiffs
Patricia M. Hamill, Esquire
1515 Market Street, 16th Floor
Philadelphia, PA 19102
Delano M. Lantz, Esquire
4 North Hanover Street
Carlisle, PA 17013
For Defendant :sal
-9-
NOTICE TO PLEAD
TO: Plaintiffs
You are hereby notified to file a written
response to the enclosed New Matter within
twenty (20) ys from the date of service
hereof or gmgnt may be entgred against
for
DELANO M. LANTZ & ASSOCIATES
By: Delano M. Lantz, Esquire
I.D. No. 21401
4 North Hanover Street
Carlisle, PA 17013
(717) 448-8634
CONRAD O'BRIEN, P.C.
By: Patricia M. Hamill, Esquire
I.D. No. 48416
Deborah J. Krabbendam, Esquire
I.D. No. 41856
1515 Market Street, Sixteenth Floor
Philadelphia, PA 19102
(215) 864-9600
Attorneys for Defendant
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND
AND WIFE, INDIVIDUALLY AND ON
BEHALF OF ALL OTHER PERSONS AND
ENTITIES SIMILARLY SITUATED,
Plaintiffs
V. No. 08-7475 Civil Term
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
ANSWER AND NEW MATTER OF DEFENDANT
PENNSYLVANIA ELECTRIC COMPANY
2
Defendant Pennsylvania Electric Company ("Penelec"), by and through its undersigned
counsel, hereby responds to the correspondingly numbered allegations of Plaintiffs' Complaint:
INTRODUCTION
1. Admitted in part, denied in part. Penelec admits only that Plaintiffs' Complaint
asserts claims on behalf of Plaintiffs and a purported class in order to recover costs that Plaintiffs
allege were "unreasonably collected by [Penelec] for the relocation of electric facilities located
within rights-of-way on property owned by class members." Plaintiffs' allegations that Penelec
acted "unreasonably" and that relocation charges were "improper" under applicable Right-of-
Way (ROW) Agreements constitute conclusions of law to which no response is required. To the
extent a response is required, those allegations are denied. To the contrary, the relocation
charges assessed by Penelec were appropriate under Penelec's governing tariff, the applicable
ROW Agreement, and Pennsylvania law. Plaintiffs' allegation that other persons are "similarly
situated" also constitutes a conclusion of law to which no response is required. To the extent a
response is required, that allegation is denied; Penelec's ROW Agreements contain
individualized provisions and the circumstances surrounding any relocation are also
individualized. By way of further answer, Penelec is not currently aware of any persons who are
"similarly situated," i.e., who have ROW agreements with terms similar to Plaintiffs' and
requested relocation under similar circumstances. Because the relevant ROW provisions are
individualized, any similar agreements cannot be located without a document by document
review, making this action unsuitable for class treatment.
THE PARTIES
2. Admitted, on information and belief.
3. Admitted.
4. Admitted.
5. Admitted.
6. The allegations in Paragraph 6 constitute conclusions of law to which no response
is required. To the extent a response is required, these allegations are denied and the answer to
Paragraph 1 is incorporated.
7. Admitted.
JURISDICTION AND VENUE
Penelec incorporates by reference its responses to the allegations contained in the
preceding paragraphs as if fully set forth herein.
8. Penelec admits that prior to filing this action, Plaintiffs initiated a proceeding
before the Pennsylvania Public Utility Commission ("PUC"). Penelec states that the PUC's
ruling speaks for itself and any inconsistent statement is denied. By way of further answer, the
PUC held that it had no jurisdiction to interpret the ROW Agreement because in its view
Plaintiffs' claim was a real property claim which belonged in a court of general jurisdiction.
However, the PUC expressly acknowledged that a court could conclude the controversy was
governed by Penelec's tariff, and determined that if the controversy were decided based upon
Penelec's tariff, Penelec's relocation charge was appropriate. Penelec's position is that the tariff
provisions control the relocation costs under the circumstances of this case.
9. The allegations in Paragraph 9 constitute conclusions of law to which no response
is required.
10. The allegations in Paragraph 10 constitute conclusions of law to which no
response is required.
4
FACTS
Penelec incorporates by reference its responses to the allegations contained in the
preceding paragraphs as if fully set forth herein.
11. Penelec admits that Plaintiffs own real property located at the corner of Walnut
Bottom Road and Airport Road in Shippensburg, Pennsylvania. Penelec is, after reasonable
investigation, without knowledge or information sufficient to form a belief as to the truth of the
remaining allegations of Paragraph 11.
12. Admitted.
13. Admitted.
14. Admitted.
15. Admitted.
16. Admitted.
17. Admitted that Penelec paid the Hollars $26. The remaining allegations of
Paragraph 17 are legal conclusions to which no response is required. By way of further answer,
the ROW Agreement speaks for itself and any inconsistent characterizations are denied.
18. Admitted. Penelec further states that the ROW agreement is not a lease and it was
never under any obligation to pay lease or rent fees to the Hollars or to their successors-in-
interest for the use of the property for electric utility facilities.
19. Denied. The allegations set forth in Paragraph 19 are vague and conclusory.
Penelec's price terms depend on a number of factors including applicable tariff provisions, time
frame and other matters specific to the customer or agreement at issue.
5
20. Denied as stated. The allegations of paragraph 20 are an incomplete summary of
the terms of the ROW Agreement, which speaks for itself, and any inconsistent characterizations
are denied. The provision at issue was typed on the form and is specific to this ROW agreement.
21. Admitted, on information and belief.
22. Admitted. Plaintiffs were also aware of the existence of the electrical facilities
visible on the property.
23. Admitted.
24. Admitted in part and denied in part. Admitted that Plaintiffs undertook efforts to
develop the property. After reasonable investigation Penelec lacks knowledge or information
sufficient to form a belief as to the full nature and extent of such efforts and the remaining
allegations are denied and proof thereof demanded.
25. Admitted in part and denied in part. Admitted that a Rutters Farm Store is located
on the property at this time. After reasonable investigation, Penelec is otherwise without
knowledge or information sufficient to form a belief as to the truth of the allegations set forth in
Paragraph 25, and those allegations are therefore denied and proof thereof demanded.
26. Denied. After reasonable investigation, Penelec is without knowledge or
information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 26,
and the allegations are therefore denied and proof thereof demanded.
27. Denied. After reasonable investigation, Penelec is without knowledge or
information sufficient to form a belief as to the truth of the allegations set forth in Paragraph 27,
and the allegations are therefore denied and proof thereof demanded.
28. Admitted.
29. Admitted.
6
30. Admitted that the ROW Agreement does not address, expressly or otherwise, the
question of responsibility for relocation costs. By way of further answer, it is only where
"future conditions require" relocation that the agreement makes any provision for relocation of
the poles and anchors. Otherwise, the agreement does not provide the grantors and their
successors with any right whatsoever to any relocation of the poles and anchors. In such
instances where future "conditions" do not "require" relocation, the costs of any relocation done
by Penelec to accommodate a relocation request of the grantors or their successors are clearly the
responsibility of the grantors and their successors pursuant to applicable tariffs in effect at the
time of the request and other applicable legal principles. On information and belief, no
"conditions" required the relocation of the poles and anchors in this case. The relocation was
done as an accommodation per the Plaintiffs' request provided Plaintiffs deposited in advance
the estimated costs of the relocation as determined by the provisions of Penelec's tariff in effect
at the time of the request.
31. Admitted.
32. Admitted. The answer to paragraph 30 is incorporated herein by reference.
Penelec admits that, pursuant to the terms of its applicable tariff, it required Plaintiffs to pay the
estimated costs of relocation in advance because Plaintiffs were responsible for such costs for the
relocation, which was done for their benefit and for no other reason. As set forth above, no
conditions required the relocation.
33. Admitted that Plaintiffs paid the invoice amount in May 2006. The allegations
are otherwise denied. After reasonable investigation, Penelec is without knowledge or
information sufficient to form a belief as to the truth of Plaintiffs' allegation as to their motive in
paying the invoice amount, and the allegations are denied and proof thereof demanded.
7
Additionally, to the extent that the allegations set forth in Paragraph 33 constitute conclusions of
law, no response is required.
34. Admitted.
35. Admitted. By way of further answer, Penelec incorporates the provisions of
Tariff- Electric Pa. P.U.C. No. 77 and states that both Penelec and its customers are bound by
the provisions of the filed tariff in effect when the services at issue are performed. Moreover, the
ROW agreement did not purport to impose any obligation on Penelec to pay the costs of
relocation of the poles and anchors where the request was made in order to accommodate
Plaintiffs' development plans for the property.
36. Denied as stated. Penelec incorporates its response to Paragraph 8.
37. Denied. Penelec incorporates its responses to Paragraphs 1, 8, 30 and 35 above.
CLASS ACTION ALLEGATIONS
Penelec incorporates herein by references its responses to the allegations contained in
the preceding paragraphs as if fully set forth herein.
38. The allegations in Paragraph 38 constitute conclusions of law to which no
response is required. To the extent a response is required, Penelec admits that Plaintiffs bring
this action as a purported class action. The remaining allegations in paragraph 38 are denied and
the response to Paragraph 1 is incorporated. By way of further answer, Penelec is not currently
aware of any persons who are "similarly situated," i.e., who have ROW agreements with terms
similar to Plaintiffs' and requested relocation under similar circumstances. Because the relevant
ROW provisions are individualized, any similar agreements cannot be located without a
document by document review, making this action unsuitable for class treatment.
8
39. The allegations in Paragraph 39 constitute conclusions of law to which no
response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraphs 1 and 38 are incorporated herein by reference.
40. The allegations in Paragraph 40 constitute conclusions of law to which no
response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraphs 1 and 38 are incorporated herein by reference.
41. The allegations in Paragraph 41 constitute conclusions of law to which no
response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraphs 1 and 38 are incorporated herein by reference.
42. The allegations in Paragraph 42 constitute conclusions of law to which no
response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraphs land 38 are incorporated herein by reference.
43. The allegations in Paragraph 43 constitute conclusions of law to which no
response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraphs 1 and 38 are incorporated herein by reference.
44. The allegations in Paragraph 44 constitute conclusions of law to which no
response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraph 1 and 38 are incorporated herein by reference.
45. The allegations in Paragraph 45 constitute conclusions of law to which no
response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraphs 1 and 38 are incorporated herein by reference.
9
46. The allegations in Paragraph 46 constitute conclusions of law to which no
response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraph 1 and 38 are incorporated herein by reference.
CAUSES OF ACTION
Count I: Breach of Contract of Behalf of the Named Plaintiffs
47. Penelec incorporates by reference its responses to the allegations contained in the
preceding paragraphs as if fully set forth herein.
48. Denied. The allegations in Paragraph 48 constitute conclusions of law to which
no response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraph 1, 8 and 30 are incorporated herein by reference. Penelec did not breach
the ROW agreement by requiring advance payment of the estimated costs of the relocation which
Plaintiffs requested in order to accommodate their real estate development plans and not because
any conditions required the relocation, and where the agreement in any event is silent on the
responsibility for relocation costs.
49. Denied. The allegations in Paragraph 49 constitute conclusions of law to which
no response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraphs 1, 8, 30 and 48 are incorporated herein by reference.
Count II: Breach of Contract on Behalf of the Class
50. Penelec incorporates by reference its responses to the allegations contained in the
preceding paragraphs as if fully set forth herein.
51. Denied. The allegations in Paragraph 51 concern unidentified putative class
members and therefore, after reasonable investigation, Penelec is without knowledge or
10
information sufficient to form a belief as to the truth of these allegations. By way of further
answer, the responses to Paragraphs 1 and 38 are incorporated herein by reference.
52. Denied. The allegations in Paragraph 52 constitute conclusions of law to which
no response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraphs 1, 8, 30, 38 and 48 are incorporated.
53. Denied. The allegations in Paragraph 53 constitute conclusions of law to which
no response is required. To the extent a response is required, these allegations are denied and the
responses to Paragraphs 1, 8, 30, 38 and 48 are incorporated herein by reference.
NEW MATTER
54. Penelec incorporates by reference its responses to the allegations contained in the
preceding paragraphs as if fully set forth herein.
55. Plaintiffs' Complaint fails to state a claim upon which relief can be granted.
56. As Plaintiffs concede, the parties' ROW Agreement "does not expressly address
who is responsible for the costs associated with relocation of Penelec facilities." Compl. at 130.
In fact, the ROW Agreement is silent with respect to the issue of responsibility for relocation
costs.
57. The ROW agreement only allows for relocation of the poles and anchors "if
future conditions require...."
58. Unless and until "future conditions require" relocation of the poles and anchors,
the grantors and their successors had no right to make a request for relocation of the poles and
anchors placed on the property by Penelec pursuant to the rights granted to it under the ROW
agreement.
11
59. At the time Plaintiffs submitted their Facilities Relocation Request to Penelec on
June 21, 2005, no conditions required the relocation of the poles and anchors placed on the
property by Penelec pursuant to the ROW agreement.
60. Plaintiffs submitted their Facilities Relocation Request as part of their plan for the
development of the property and not because of any then-existing conditions that required the
relocation.
61. Other development options existed that would have allowed for development
without any relocation of the poles and anchors.
62. Plaintiffs chose a development plan for the property that they believed would
maximize the income and/or profit they would receive as a result of the development.
63. Penelec agreed to relocate the poles and anchors only because Plaintiffs requested
the relocation and to accommodate their request, and only if Plaintiffs paid the estimated costs in
advance as calculated in accordance with Penelec's tariff then in effect.
64. The parties' ROW Agreement and other facts alleged by Plaintiffs fail to provide
any basis for imposing the relocation costs upon Penelec.
65. Penelec's applicable tariff, in contrast, specifically imposes relocation costs on the
party who requests the relocation. See Compl. at ¶ 35.
66. Penelec's tariff in effect at the time Plaintiffs submitted their relocation request
was Tariff- Electric Pa. PUC No. 77. Under the tariff, a customer or applicant who requests a
relocation of electric facilities must pay all costs for that relocation. The tariff also provides that
Penelec will provide an estimate of costs and may require payment from a non-residential party
in advance of performing the work.
12
67. Public utility tariffs have the force and effect of law, and are binding on both the
utility and its customers.
68. By seeking to impose the costs of relocation on Penelec, Plaintiffs seek to vary
the terms of Penelec's applicable filed tariff.
69. Plaintiffs' claims are barred by the filed tariff doctrine.
70. Plaintiffs' claims are also barred by the doctrine of primary jurisdiction.
71. Before filing the instant action, Plaintiffs filed a Complaint with the PUC.
72. After an evidentiary hearing in that matter, the PUC expressly acknowledged that
a court could conclude that the controversy between Plaintiffs and Penelec was governed by
Penelec's tariff, and determined that if the controversy were decided based upon Penelec's tariff,
the relocation charge was appropriate.
73. Plaintiffs did not appeal the PUC's decision that Penelec's actions were
appropriate under its tariff.
74. That decision is therefore not subject to collateral attack in this Court.
13
75. Penelec reserves the right to assert all other affirmative defenses under the
provisions of Pa. R. Civ. P. 1030 to the extent that further investigation or discovery reveals facts
to show that any such defenses may be pertinent herein.
Respectfully submitted,
Delano M. Lantz, Esquire
I.D. No. 21401
DELANO M. LANTZ & ASSOCIATES
4 North Hanover Street
Carlisle, PA 17013
(717) 422-5874
Patricia M. Hamill, Esquire
I.D. No. 48416
Deborah J. Krabbendam, Esquire
I.D. No. 41856
CONRAD O'BRIEN, P.C.
1515 Market Street, Sixteenth Floor
Philadelphia, PA 19102
(215) 864-9600
Attorneys for Defendant
Pennsylvania Electric Company
Dated: June 1, 2009
14
08/01/09 12:90 FAX 3000843875 LEGAL DEPT.
VERIFICATION
I verify that the statements made in the foregoing Answer and New Matter of
Defendant Pennsylvania Electric Company are true and correct to the best of my
0002/002
knowledge, information and belief. I understand that false statements are made subject
to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities.
?uhye I $ ?
Dated: , 2009
CERTIFICATE OF SERVICE
I certify that on this date I caused copies of the foregoing to be served on the
individuals listed below by first-class U.S. mail:
Robert B. Hoffman, Esquire
Deanne O'Dell, Esquire
Carl Shultz, Esquire
Eckert Seamans Cherin and Mellott LLC
213 Market Street, 8th Floor
P.O. Box 1248
Harrisburg, PA 17108-1248
(717) 237-7182
Attorneys for Plaintiffs
Date: June 1, 2009
fir- 1r- V
i.Jr it-- Cif"
w:
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND AND,
WIFE INDIVIDUALLY, AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES
SIMILARLY SITUATED
Plaintiffs
V. No. 08-7475- Civil
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
ANSWER TO NEW MATTER TO THE COMPLAINT
Plaintiffs Answer the New Matter to the Complaint as follows:
54. Plaintiffs incorporate the averments of the Complaint.
55. Paragraph 55 states a legal conclusion --and an entirely incorrect one --!,that requires
no response.
56. Paragraph 56 states a legal conclusion that requires no response.
57. Plaintiffs admit that Penelec has accurately set forth a portion of the ROW agreement.
58. Paragraph 58 states a legal conclusion -- and an entirely incorrect one --that requires
no response.
59. Plaintiffs deny the allegations of ¶ 59. See Complaint, ¶¶ 24-27.
60. Plaintiffs deny the allegations of ¶ 60. See Complaint, ¶¶ 24-27. Paragraph 60 further
states a legal conclusion that requires no response.
61. Plaintiffs admit that some uses of the property could be imagined that mllght not have
required the relocation of poles and anchors.
62. Plaintiffs deny the allegations of ¶ 62 as stated. By way of further answer, Plaintiffs
developed the property in a commercially reasonable and appropriate way.
(L0379519.1)
63. Plaintiffs, after a reasonable investigation, do not know why Penelec agreed to relocate
the poles etc. Accordingly, these allegations are denied. Plaintiffs do admit that Penelec refused to
relocate the poles without prior payment.
64. Paragraph 64 states a legal conclusion that requires no response.
65. Plaintiffs admit that Rules 7 and 8 of the Tariff in existence in 2006, Tariff - Electric
Pa. P.U.C. No. 77 generally impose relocation costs on the customer who request the relocation
66. Paragraph 66 states a legal conclusion that requires no response.
67. Paragraph 67 states a legal conclusion that requires no response.
68. Paragraph 68 states a legal conclusion -- and an entirely incorrect one t-that requires
I
no response.
69. Paragraph 69 states a legal conclusion -- and an entirely incorrect one +-that requires
no response.
70. Paragraph 70 states a legal conclusion-- and an entirely incorrect one that requires
no response.
71. Plaintiffs admit the allegation of ¶ 71.
72. Paragraph 72 states legal conclusions-- and entirely incorrect ones -- that requires no
response.
73. Plaintiffs admit the allegation of 173.
74. Paragraph 74 states a legal conclusion -- and an entirely incorrect one ?-that requires
no response.
(L0379519.1) -2-
75. Paragraph 75 requires no response and has no legal effect. If circumstances are such
that it is appropriate under applicable rule to allow Penelec to amend its Answer, the plaintiffs
and/or the Court will permit that to occur.
Robert B. Hoffman
Deanne O'Dell
Eckert Seamans Cherin d Mellott, LLC
213 Market Street, 8th Fl or
Harrisburg, PA 17101
(717) 237-7182
rhoffinangeckertseamans.com
dodell geckertseamans. com
(L0379519.1) -3-
I, Tod Shedlosky, hereby verify, subject to the penalties in 18 Pa C.S. § 4904 relating to
unswom falsification, that I am familiar with the factual averments set forth in the foregoing
Answer to New Matter, and that the factual averments therein are true and correct to the best of
my knowledge, information and belief.
{LO379519.1}
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND AND,
WIFE, INDIVIDUALLY, AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES
SIMILARLY SITUATED
Plaintiffs
Iv. No. 08-7475-Civil
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
CERTIFICATE OF SERVICE
I hereby certify that on June 15, 2009, I caused a true and correct copy of the foregoing
document to be served upon the following counsel of record by United States mail, postage prepaid:
Delano M. Lantz Patricia M. Hamill
DELANO M. LANTZ & ASSOCIATES
4 North Hanover Street
Carlisle, PA 17013
Deborah J. Krabbendam
CONRAD O'BRIEN
1515 Market Street. Sixteenth Floor
Philadelphia, PA 19102
Robert B. Hoffman
Eckert Seamans Cherin d Mellott,
213 Market Street, 8th F oor
P. O. Box 1248
Harrisburg, PA 17108-1248
(717) 237-7182
(L0379006.3)
RLFD--01 F" Cc
CF THE ;JT??Y
2009 Alill 16 FM 2: 02
p
DELANO M. LANTZ & ASSOCIATES
By: Delano M. Lantr, Esquire
I.D. No. 21401
4 North Hanover Street
Carlisle, PA 17013
(717} 448-8634
CONRAD O'BRIEN, P.C.
By: Patricia M. Hamill, Esquire
I.D. No. 48416
Deborah J. Krabbendam, Esquire
LD. No. 41856
1515 Market Street, Sixteenth Floor
Philadelphia, PA 19102
(215) 864-9600
r 1~~~"~-~FiCE
~~"T41E P~QTNONOTAR~
2010 SGT 18 P~1 2~ 4 Z
Cll~'~~~P~~5 LYAN ~ TY
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND
AND WIFE, INDIVIDUALLY AND ON
BEHALF OF ALL OTHER PERSONS AND
ENTITIES SIMILARLY SITUATED,
Plaintiffs
v. No. 08-7475 Civil Term
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
CERTIFICATE PREREQUISITE TO SERVICE OF
A SUBPOENA PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to
Rule 4009.22, Pennsylvania Electric Company, Defendant, through its counsel, Delano
M. Lantz, Esquire, certifies that:
(1) A notice of intent to serve the subpoena with a copy of the subpoena
attached thereto was mailed or delivered to each party at least twenty days prior to the
date on which the subpoena is sought to be served,
(2) A copy of the notice of intent, including the proposed subpoena, is
attached to this certificate,
(3) By a-mail dated Friday, October 15, 2010, at 3:16 p.m., Robert Hoffman,
counsel for Plaintiffs stated he had no objection to the service of the subpoena, and
(4) The subpoena which will be served is identical to the subpoena which is
attached to the notice of intent to serve the subpoena.
DELANO M.,b4NTZ & ASSOCIATES
By:
belaltio M. Lantz
I.D. No. 21401
4 North Hanover Street
Carlisle, PA 17013
717-422-5874
717-422-5879 (fax)
Attorneys for Plaintiffs
Dated: October 18, 2010
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date, a true and correct copy of the
foregoing document was served by first class mail, postage prepaid upon the following:
Robert B. Hoffman, Esquire
Deanne O'Dell, Esquire
Carl Shultz, Esquire
Eckert Seamans Cherin and Mellott LLC
213 Market Street, 8th Floor
P:O. Box 1248
Harrisburg, PA 17108-1248
(717) 237-7182
Attorneys for Plaintiffs
Date: October 18, 2010
DELANO M. LANTZ & ASSOCIATES
By: Delano M. Lantz, Esquire
I.D. No. 21401
4 North Hanover Street
Carlisle, PA 17013
(717} 448-8634
CONRAD O'BRIEN, P.C.
By: Patricia M. Hamill, Esquire
i.D. No. 48416
Deborah J. Krabbendam, Esquire
I.D. No. 41856
1515 Market Street, Sixteenth Floor
Philadelphia, PA 19102
(215} 864-9600
!N THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND
AND WIFE, INDIVIDUALLY AND ON
BEHALF OF ALL OTHER PERSONS AND
ENTITIES SIMILARLY SITUATED,
Plaintiffs
v. No. 08-7475 Civil Term
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
NOTICE OF INTENT TO SERVE A SUBPOENA
TO PRODUCE DOCUMENTS AND THINGS
FOR DISCOVERY PURSUANT TO RULE 4009,21
Defendant Pennsylvania Electric Company intends to serve a subpoena identical
to the one that is attached to this notice.
You have twenty (20) days from the date listed below in which to file of record
and serve upon the undersigned an objection to the subpoena. If no objection is made
the subpoena may be served.
DELANO M. LANTZ ~ ASSOCIATES
~~~~
By:
elano M. Lantz
I.D. No. 21401
4 North Hanover Street
Carlisle, PA 17013
717-422-5874
717-422-5879 (fax)
Attorneys for Defendant
Dated: October 12, 2010
2
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date, a true and correct copy of the
foregoing document was served by first class mail, postage prepaid upon the following:
Robert B. Hoffman, Esquire
Deanne O'Dell, Esquire
Carl Shultz, Esquire
Eckert Seamans Cherin and Mellott LLC
213 Market Street, 8th Floor
P.O. Box 1248
Harrisburg, PA 17108-1248
(717) 237-7182
Attorneys for Plaintiffs
IIII // ~
~tu~ lit ~~
Delano M. Lantz
Date: October 12, 2010
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
Tod and Lisa Shedlosky, et at.
Pia mti tT
V$.
Pennsylvania Electric Company
I~fendant
File No. 08-7475 Civil Tern
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Custodian of Records, Car! D. Bert & Associates
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the
following documents or things:
Please see attached Exhibit A
at Delano M. Lantz & Associates, 4 North Hanover Street, Carlisle, Pennsylvania 17013
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this
subpoena, together with the certificate of compliance, to the party making this request at the address listed
above. You have the right to seek in advance the reasonable cost of preparing the copies or producing the
things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days
after its service, the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
NAME: Delano M. Lanu. f•.sgwrc
ADDRESS: (k~anuM t.anu& 4ss«~atc~
4 North Hanover strcct ----------
Carlisle, PA ~70t3 ~^ --~~_~-
TELEPHONE: ~n-iz~-ss~a __ _ __
SUPREME COURT ID # ~~+~~~ __._
- --___
ATTORNEY FOR: ar~~a~~P~n>,i,~,~~Fi,~_U~.c_._, _ _
" ~ BY THE COURT:
mt notary, Civil Div ion
Date: Q~ - / ~ , ~_~/U
Seal of the Court ~~ ep~,
EXHIBIT A
Preliminary note: This subpoena relates to the land subdivision/development for Tod
and Lisa Shedlosky which ultimately led to the development of the property located
along the intersection of Route 174 and Airport Road and is in part reflected in the final
plan recorded in Plan Book 92, Page 46 in the Recorder of Deeds office in Cumberland
County and referred to as Walnut Bottom Road, Airport Road, Shippensburg, PA. The
requests set forth below relate to that subdivision/development.
You are hereby subpoenaed to produce the following documents (including documents
of any kind or nature whatsoever, and specifically including all electronically generated
or stored information):
All documents that contain any information with respect to all options considered
for the layout of the development and the possible impact of each option on the
question of whether or not any electric utility poles that existed on the property
pursuant to a right of way granted by Frank and Janet Hollar to Pennsylvania
Electric Company on June 1, 1960, would or would not need to be relocated in
order to proceed with each option considered.
2. All documents relating to the option of having an entrance off of Route 174 and
the requirements for a highway occupancy permit for such entrance and whether
or not any utility poles would need to be relocated in order to obtain a highway
occupancy permit for such an entrance and what other options existed or were
considered that would not require the relocation of any utility poles along Route
174 in order to obtain the highway occupancy permit or that would not require
any entrance from Route 174 into the area being developed.
3. A note on sheet 12 of 20 of the plan recorded in Plan Book 92, Page 46 (copy
attached hereto) states: "Utility poles in conflict with the proposed improvements
on this site shall be relocated in conjunction with First Energy Corporation's
policies and any such relocation is subject to approval by First Energy
Corporation." With respect to the foregoing note, produce all documents relevant
to the note, including but not limited to all documents relating to the First Energy
policies referred to, all documents relating to obtaining First Energy's approval for
the relocation of the "utility poles in conflict with the proposed improvements",
and all documents relating to steps taken to obtain First Energy's approval and
whether such approval was obtained. Also, produce all documents that identify
the utility poles that were in conflict with the proposed improvements and all
documents that contain information as to why another option was not selected
where none of First Energy's poles would be conflict with the proposed
development.
4. Any and all notes, correspondence or other documents related to the costs that
would need to be paid by the Shedloskys for the relocation of any electric utility
poles or other utilities in connection with the development and whether or not the
Shedloskys were entitled to have the electric utility poles relocated by First
Energy without any cost to the Shedloskys..
5. Any and all other documents related to the development options for the property
that would not require the relocation of any of the existing transmission line along
Route 174 located on the property.
6. Any and all documents related to the July 1, 1960, right-of-way agreement
between Pennsylvania Electric Company and Frank and Janet Holler, including
any documents that contain information as to whether or not the existence of the
right-of-way agreement was considered in connection with the development of
the property described above.
i
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'~ ~, M i ~ . •-u
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'0212009 11:43:40 AM CUMBERUtNa COUNTY Irist.# 200671024 -Page t2 c
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND AND,
WIFE INDIVIDUALLY, AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES
SIMILARLY SITUATED
Plaintiffs
V. No. 08-7475- Civil
Class Action
PENNSYLVANIA ELECTRIC COMPANY,
Defendant
ORDER RE: STIPULATION TO DISMISS ICLASS ACTION ALLEGATIONS
I'a
AND NOW, this 2Z day of June, 2012, upon consideration of Plaintiffs' request that the
Court approve the discontinuance of the class action allegations of this matter and they be
granted leave to discontinue the class action aspects of this matter without notice to class
members; noting the Stipulation of Defendants in these requests; and finding the requests are
properly supported by the information in the request, it is hereby Ordered that the Application is
GRANTED. The Class Action aspects of this matter are hereby discontinued and plaintiffs are
excused from the requirement of notifying class members as to such discontinuance.
ly? -? A, V
, J?
c-s
Distribution: -2a ="
?cf..
? Robert B. Hoffman v3 r -
Eckert Seamans Cherin and Mellott, LLC
213 Market Street, 8th Floor
Harrisburg, PA 17101
r~?
(L0475728.1)
Delano M. Lantz
DELANO M. LANTZ & ASSOCIATES
4 North Hanover Street
Carlisle, Pa. 17013
I/ Patricia M. Hamill
Deborah J. Krabbendam
CONRAD O'BRIEN
1515 Market Street. Sixteenth Floor
Philadelphia, PA 19102
? ,, es At&,,lam 61aa/ja
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J'
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in triplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY
Please list the following case:
? for JURY trial at the next term of civil court.
X? for trial without a jury.
CAPTION OF CASE
(entire caption must be stated in full)
Tod and Lisa
Shedlosky
(other)
(Plaintiff)
VS.
Pennsylvania Electric
Company
VS.
(Defendant)
ILED-O ` ICS.
D THE PROTNONO AR.i
2012 JUL 13 PM 1, 01
CUMBERLAND COt NTY
PENNSYLVANi
(check one)
X? Civil Action - Law
? Appeal from arbitration
The trial list will be called on
and
Trials commence on
Pretrials will be held on
(Briefs are due S days before pretrials
,,,_ 08-7475
Term
Indicate the attorney who will try case for the party who files this praecipe:
Robert B. Hoffman. Eckert Seamans, 213 Market St., 8th Floor, Harrisburg PA 17101
Indicate trial counsel for other parties if known:
Delano Lantz, Delano M. Lantz & Associates 4 North Hanover Street Carlisle, PA 173/
This case is ready for trial.
Date: July 10, 2012
Signed: ? (-./C/ k _-A q
Print Name: Robert B. Hoffman
Attorney for: Plaintiffs Tod and Lisa Shedlosky
aCk N U 89a1 /
(2M WT)9
i ?
r
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
TOD AND LISA SHEDLOSKY, HUSBAND AND,
WIFE, INDIVIDUALLY, AND ON BEHALF OF
ALL OTHER PERSONS AND ENTITIES
SIMILARLY SITUATED
Plaintiffs
V. No. 08-7475-Civil
Class Action
PENNSYLVANIA ELECTRIC COMPANY, :
Defendant
CERTIFICATE OF SERVICE
I hereby certify that on July 10, 2012, I caused a true and correct copy of the foregoing
document to be served upon the following counsel of record by United States mail, postage
Delano M. Lantz
DELANO M. LANTZ & ASSOCIATES
4 North Hanover Street
Carlisle, Pa. 17013
Patricia M. Hamill
Deborah J. Krabbendam
CONRAD O'BRIEN
1515 Market Street. Sixteenth Floor
Philadelphia, PA 19102
Robert B. Hoffinan i
Eckert Seamans Cherin d Mellott, LLC
213 Market Street, 8th Flc3Or
P. O. Box 1248
Harrisburg, PA 17108-1248
(717) 237-7182
(L0379006.3)
TOD AND LISA IN THE COURT OF COMMON PLEAS OF
SHEDLOSKY, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
PENNSYLVANIA ELECTRIC
COMPANY,
Defendant NO. 08-7475 CIVIL TERM
ORDER OF COURT
AND NOW, this 8t' day of August, 2012, a pretrial conference in the above m.
is scheduled for Thursday, September 13, 2012, at 9:30 a.m., in chambers of
undersigned judge. Pretrial memoranda shall be submitted by counsel in accordance
C.C.R.P. 212-4, at least five days prior to the pretrial conference.
A NONJURY TRIAL in the above matter is scheduled for Wednesday, October ?,
2012, at 9:30 a.m., in Courtroom No. 5, Cumberland County Courthouse, Carlisl
Pennsylvania.
Robert B. Hoffman, Esq.
213 Market Street, 8t' Floor
Harrisburg, PA 17101
Attorney for Plaintiffs
Delano Lantz, Esq.
4 North Hanover Street
Carlisle, PA 17013
Attorney for Defendant
V Court Administrator
BY THE COURT,
Christylee . Peck, J.
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TOD and LISA IN THE COURT OF COMMON PLEAS OF
SHEDLOSKY, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V. CIVIL ACTION - LAW
PENNSYLVANIA
ELECTRIC COMPANY,
Defendant NO. 08-7475 CIVIL TERM
IN RE: NONJURY TRIAL
ORDER OF COURT
AND NOW, this 22'd day of August, 2012, upon relation of Robert B. Hoffman,
Esq., attorney for Plaintiffs, that this matter has settled, the pretrial conference previously
scheduled for September 13, 2012, and the nonjury trial previously scheduled for October
3, 2012, are cancelled.
BY THE COURT,
Christyle . Peck, J.
Robert B. Hoffman, Esq.
213 Market Street, 8d' Floor
Harrisburg, PA 17101
Attorney for Plaintiffs
Delano Lantz, Esq.
4 North Hanover Street
Carlisle,) PA 17013
Attorney for Defendant
Court Administrator
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