IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Janice Denito Branagh, :
Petitioner :
: No. 1857 C.D. 2019
v. :
: Submitted: June 6, 2023
Pennsylvania Public Utility :
Commission , :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 6, 2023
This case is one of several actions pending in this Court in which
Pennsylvania utility customers have challenged the installation of wireless “smart”
meters (smart meters) in or on their homes pursuant to certain 2008 amendments to the
Public Utility Code1 (Code), collectively known as Act 1292 (Act 129). In this appeal,
Janice Denito Branagh (Branagh) petitions for review, pro se, of the November 14,
2019 opinion and order of the Pennsylvania Public Utility Commission (PUC) (PUC
Decision). The PUC Decision adopted the initial decision of Administrative Law Judge
(ALJ) Darlene D. Heep, in which the ALJ sustained, in part, and denied, in part,
1
66 Pa. C.S. §§ 101-3316.
2
Act of October 15, 2008, P.L. 1592, No. 129, 66 Pa. C.S. § 2708(f).
Branagh’s formal complaint against PECO Energy Company (PECO)3 regarding its
installation of smart meters in her home (ALJ Initial Decision).
In her petition for review (PFR), Branagh challenges the PUC Decision
on several grounds. After careful review, we affirm.
I. BACKGROUND AND PROCEDURAL HISTORY
A. Act 129
The General Assembly enacted Act 129 in an attempt to reduce energy
consumption and demand. Romeo v. Pennsylvania Public Utility Commission, 154
A.3d 422, 424 (Pa. Cmwlth. 2017). It addresses multiple subjects, including electricity
distribution, service provider responsibilities, and smart meter technology. 66 Pa. C.S.
§ 2807(f); Romeo, 154 A.3d at 424.4 Pertinent to this appeal, Act 129 imposes the
following obligations on an electric distribution company (EDC) to furnish smart meter
technology to its customers:
(f) Smart meter technology and time of use rates.
(1) Within nine months after the effective date of this
paragraph, electric distribution companies shall file a
smart meter technology procurement and installation plan
with the [PUC] for approval. The plan shall describe the
smart meter technologies the electric distribution company
proposes to install in accordance with paragraph (2).
(2) Electric distribution companies shall furnish smart
meter technology as follows:
3
PECO was a party to the proceedings below. On February 20, 2020, pursuant to
Pennsylvania Rules of Appellate Procedure (Pa. R.A.P.) 123 and 1531, PECO filed an application to
intervene as of right. We granted PECO’s application by order exited March 4, 2020, therein
designating PECO as an intervenor aligned with the PUC.
4
The parties do not dispute and have assumed throughout this appeal that Act 129 applies to
PECO.
2
(i) Upon request from a customer that agrees to pay the
cost of the smart meter at the time of the request.
(ii) In new building construction.
(iii) In accordance with a depreciation schedule not to
exceed 15 years.
66 Pa. C.S. § 2807(f). The term “smart meter technology” is defined as follows:
(g) Definition.—As used in this section, the term “smart meter
technology” means technology, including metering
technology and network communications technology capable
of bidirectional communication, that records electricity usage
on at least an hourly basis, including related electric
distribution system upgrades to enable the technology. The
technology shall provide customers with direct access to and
use of price and consumption information. The technology
shall also:
(1) Directly provide customers with information on their
hourly consumption.
(2) Enable time-of-use rates and real-time price programs.
66 Pa. C.S. § 2807(g).
Section 1501 of the Code, which applies generally to a public utility’s
“service and facilities,” provides, in pertinent part, as follows:
Every public utility shall furnish and maintain adequate,
efficient, safe, and reasonable service and facilities, and shall
make all such repairs, changes, alterations, substitutions,
extensions, and improvements in or to such service and
facilities as shall be necessary or proper for the
accommodation, convenience, and safety of its patrons,
employees, and the public. Such service also shall be
reasonably continuous and without unreasonable
interruptions or delay. Such service and facilities shall be in
conformity with the regulations and orders of the [PUC].
3
66 Pa. C.S. § 1501. Although consumers may lodge complaints to the PUC about a
public utility’s service and facilities under this section, the PUC may not sustain such
a complaint unless a violation of Section 1501 is established. West Penn Power Co. v.
Pennsylvania Public Utility Commission, 478 A.2d 947, 949 (Pa. Cmwlth. 1987).
B. Branagh’s Case Before the ALJ and PUC
On November 16, 2016, Branagh filed a Formal Complaint (Complaint)
with the PUC against PECO in which she argued that, due to health concerns, she did
not want PECO to install smart meters in her home. (Supplemental Reproduced Record
(S.R.R.) 0001b.) She further argued that PECO already had wrongfully installed a
natural gas smart meter module against her wishes while she was at work.5 (Id.; ALJ
Initial Decision, 1-2; S.R.R. 0009b-10b.) Prior to filing the Complaint, Branagh
exchanged correspondence with PECO in which she advised that she did not want the
meters in her home. (S.R.R. 0012b-14b.) After PECO sent Branagh a 10-day service
termination notice, she filed her Complaint with the PUC. Branagh attached to her
Complaint a letter from her treating physician indicating that she has a history of
sensitivity to chemicals and suffers from idiopathic angioedema. (S.R.R. 0002b-03b,
0007b.)
Branagh did not present any witnesses at the hearing before the ALJ. She
testified on her own behalf and submitted three exhibits that were entered into the
record: two letters from her treating physicians and a notice from the Equal
Employment Opportunity Commission (EEOC) regarding the Americans with
Disabilities Act (ADA) Amendments Act of 2008.6 (Confidential Supplemental
5
Although Branagh initially refused to permit PECO to install the gas smart meter module in
her home, PECO did not communicate the refusals to its meter installers, who installed the smart
meter module on September 28, 2016. (ALJ Initial Decision, 19-20; S.R.R. 027b-028b.)
6
Pub. L. 110-325, 122 Stat. 3553 (2008).
4
Reproduced Record (C.S.R.R.) 0053c-55c.) The letters from Branagh’s physicians
indicated that she currently is under care for cardiac issues, is sensitive to certain
chemicals, and suffers from idiopathic angioedema. (Id.) Branagh testified that she
has a history of health problems and that she believes that the gas smart meter module
already installed in her home could be exacerbating her symptoms. She readily
admitted, however, that she does not know whether her symptoms have worsened
because of the smart meter installation and that she has not discussed the smart meter
with her doctor. (C.S.R.R. 0004c-07c, 0017c, 0018c-21c.) Branagh attempted to
introduce into the record certain scientific studies regarding smart meters and their
potential health risks that she found on the internet while doing her own research. None
of the materials had been presented to the PUC in any proceeding. (Id. at 0006c-
0013c.) PECO objected to the exhibits as inadmissible hearsay, and the ALJ did not
admit them. (Id. at 0009c-11c, 0014c.). Branagh did not object to the ALJ’s ruling.
PECO presented the testimony of three expert witnesses: Glenn Pritchard,
P.E.; Christopher Davis, Ph.D.; and Mark Israel, M.D. Pritchard testified that the smart
meter technology PECO utilizes emits very low radio frequency (RF) levels and does
not produce the type of emissions that most concerned Branagh. (S.R.R. 0134b-43b,
0163b.) Dr. Davis testified that PECO’s new smart meters reduce RF emissions by
83% compared with PECO’s older meters, including one installed at Branagh’s home.
He also testified that the RF emissions from the new smart meters are very small, have
no scientifically established health effects, are millions of times smaller than the
standards set by the Federal Communications Commission (FCC), and are many times
smaller than other electrical devices already located in Branagh’s home. (S.R.R.
0177b-199b.) Dr. Israel testified regarding the potential health effects of RF emissions
from the smart meters. He reviewed the medical records submitted by Branagh and
5
her health conditions and opined that there is no reliable medical evidence indicating
that the RF emissions from PECO’s smart meters would cause, contribute to, or
exacerbate the conditions or symptoms Branagh reported. (C.S.R.R. 0028c-52c.)
PECO also presented testimony demonstrating that it offered Branagh
certain accommodations in an attempt to alleviate her concerns about the smart meters,
including moving them to a more distant location at her residence. Branagh declined
the accommodation and indicated that replacement analog meters were the only
accommodation she would accept. (S.R.R. 0090b, 0115b, 0147b, 0114b-15b.)
In her Initial Decision, the ALJ concluded that Branagh “has not met her
burden of proof of establishing with substantial evidence that PECO committed an
offense in violation of the [Code], the [PUC]’s regulations or an outstanding order of
the [PUC] with respect to health concerns regarding PECO meters.” (Id. at 0032b.)
The ALJ further found, however, that Branagh did meet her burden to establish that
PECO’s installation of its gas smart meter module at Branagh’s residence was
“unreasonable” under Section 1501. (Id. at 0009b, 0033b). Pursuant to Section 3301
of the Code, 66 Pa. C.S. § 3301, the ALJ imposed a $500.00 civil penalty for the
violation. (Id. at 0033b.)
On January 30, 2018, Branagh filed five exceptions to the ALJ Initial
Decision. Therein Branagh argued that (1) the ALJ did not adequately describe or
consider her medical conditions and symptoms; (2) Dr. Israel should not have been
designated as an expert witness; (3) the ALJ applied the incorrect burden of proof and
erred in concluding that Branagh did not carry her burden to establish a Section 1501
violation; (4) the ALJ erred in not permitting Branagh to delay installation of a smart
meter in her home; and (5) the ALJ erred in not considering the scientific articles that
6
she attempted to introduce into the record. The PUC denied all of Branagh’s exceptions
and adopted the ALJ Initial Decision.
In relevant part,7 the PUC re-affirmed that Branagh had the burdens of
proof and persuasion to establish a violation of Section 1501. (S.R.R. 0040b-43b.)
Regarding the specific burden applicable to Branagh’s Section 1501 claim, the PUC
stated that Branagh was required to “demonstrate by a preponderance of the evidence
a ‘conclusive causal connection’ between the harm to human health and the RFs from
the [smart meter].” (Id. at 0045b.) The PUC further concluded that Branagh failed to
establish her initial burden of proof because she did not introduce any evidence
establishing any adequate causal connection between the smart meter and the alleged
adverse effects to her health:
Based on our review of the record in this proceeding, we
determine that [Branagh] did not establish her initial burden
of proof. [ ] Branagh did not introduce evidence into the
record to demonstrate a conclusive causal connection
between the low-level RF fields from PECO’s smart meter
and adverse health effects for [ ] Branagh. [ ] Branagh
testified that she is concerned about RFs emanating from the
[smart] meters and that this may cause or aggravate her
specific health conditions and symptoms. [ ] Branagh
provided testimony about her specific health conditions and
symptoms, including those that she states she has developed
since the gas meter module was installed at her home. [ ]
Branagh also presented two letters from her physicians . . .
indicating that she was being treated for certain health
conditions and symptoms. In presenting her case, however,
[Branagh] did not offer medical or scientific expert opinion
testimony on the issue of whether [her] exposure to the RF
emissions from PECO’s [smart] meter caused or will cause
adverse health effects [ ]. Based on the evidence presented,
7
The issue raised in Branagh’s fourth exception, installation delay, is not at issue in this
appeal.
7
[Branagh] essentially has left it to us to infer that [her] health
symptoms are caused by RF emissions from PECO’s [smart]
meter. While we recognize that a complainant may establish
a prima facie case with circumstantial evidence, Branagh’s
testimony and the letters from the physicians regarding their
treatment of [her] health symptoms experienced or observed
at, around and after the time PECO installed the gas meter
module at her home are not sufficient to support such an
inference. The timing of the installation of the [smart meter]
and [Branagh’s] health symptoms do[es] not “speak for itself”
in terms of a causal connection. Nor does the evidence of
Branagh’s health symptoms imply that exposure to RF
emissions from a PECO [smart] meter caused or will cause
the symptoms.
(Id. at 0055b-56b.) The PUC also determined that Act 129 does not provide for an
automatic opt-out that would permit delay in installation and that PECO’s smart meters
did not violate the Code or any PUC regulation or order. (Id. at 0058b.)
Regarding Branagh’s evidentiary challenges, the PUC concluded that the
ALJ adequately permitted Branagh to testify about her medical conditions and the
articles she retrieved in her online research. The PUC nevertheless concluded that
those documents properly were excluded from the record before the ALJ and that, even
if they had been admitted, they would not have been sufficient to establish any
additional facts. (Id. at 0059b-60b.) Regarding Branagh’s challenge to Dr. Israel’s
qualifications, the PUC concluded that he properly was qualified as an expert on the
issues of RF and its effects on human health. (Id. at 0054b.)
8
Having denied all of Branagh’s exceptions, the PUC adopted the ALJ
Initial Decision. (Id. at 0061b.) Branagh filed her pro se PFR in this Court on January
8, 2020.8
C. Povacz and Related Smart Meter Cases
1. Commonwealth Court Proceedings
Several similar complaints were filed with the PUC by other Pennsylvania
utility customers seeking exemptions from PECO’s smart meter requirement. A
number of appeals from the PUC’s decisions on those complaints were filed in this
Court, three of which we consolidated and heard together. See Povacz v. Pennsylvania
Public Utility Commission (Pa. Cmwlth., No. 492 C.D. 2019); Murphy v. Pennsylvania
Public Utility Commission (Pa. Cmwlth., No. 606 C.D. 2019); and Randall v.
Pennsylvania Public Utility Commission (Pa. Cmwlth., No. 607 C.D. 2019) (together,
Povacz). The other actions (including the instant case), although at times
administratively managed together, are not consolidated. See Paul v. Pennsylvania
Public Utility Commission (Pa. Cmwlth., No. 460 C.D. 2019); Hoffman-Lorah v.
Pennsylvania Public Utility Commission (Pa. Cmwlth., No. 712 C.D. 2019); Hughes v.
Pennsylvania Public Utility Commission (Pa. Cmwlth., No. 827 C.D. 2020); Ulmer v.
Pennsylvania Public Utility Commission (Pa. Cmwlth., No. 967 C.D. 2020); Schmukler
v. Pennsylvania Public Utility Commission (Pa. Cmwlth. No. 1102 C.D. 2019); Hess
v. Pennsylvania Public Utility Commission (Pa. Cmwlth., No. 1155 C.D. 2020); Lucey
v. Pennsylvania Public Utility Commission (Pa. Cmwlth., No. 1212 C.D. 2020);
McKnight v. Public Utility Commission (Pa. Cmwlth., No. 1253 C.D. 2019); Myers v.
Pennsylvania Public Utility Commission (Pa. Cmwlth., No. 1337 C.D. 2019); and
8
On December 12, 2019, Branagh filed a pro se letter in this Court in which she attempted to
appeal the PUC Decision. On December 13, 2019, our prothonotary advised Branagh by letter that
she must file a petition for review to perfect the appeal. She did so on January 8, 2020.
9
Sunstein v. Public Utility Commission (Pa. Cmwlth., No. 1581 C.D. 2019)
(collectively, Non-consolidated Smart Meter Cases).9
On October 8, 2020, this Court, sitting en banc, issued a decision in
Povacz. See Povacz v. Pennsylvania Public Utility Commission, 241 A.3d 481 (Pa.
Cmwlth. 2020) (Povacz I), aff’d in part and rev’d in part, 280 A.3d 975 (Pa. 2022)
(Povacz II). Therein, we described the petitioners’ (Povacz Consumers) allegations, in
pertinent part, as follows:
[Povacz] Consumers are customers in PECO's electricity
service area. They claim they are hypersensitive to emissions
of [RF]. They have health issues they contend are or may be
worsened by RF exposure. They have taken extraordinary
measures to eliminate RF in their home environments and to
minimize their RF exposure elsewhere. They provided expert
medical evidence from their treating physicians that their
exposure to RF should be minimized in order to avoid risks
of harm to their health. They also offered expert testimony
that emerging research indicates health risks at much lower
levels of RF exposure than current federal regulations allow.
[Povacz] Consumers currently have automatic meter reading
(AMR) meters at their homes. [Povacz] Consumers received
notices from PECO that wireless smart meters would be
installed in or on their homes to replace their current electric
meters. They informed PECO that they would not allow
installation of the replacement meters because of the RF
emitted by wireless smart meters. PECO notified them that
their electricity would be cut off entirely unless they allowed
installation of wireless smart meters. [Povacz] Consumers
9
In another smart meter case, Hanley v. Pennsylvania Public Utility Commission (Pa.
Cmwlth., No. 172 C.D. 2020), the PUC praeciped to strike the Hanleys’ petition for review because
they previously had sought, and the PUC had granted, reconsideration of the Hanleys’ complaint
against Pennsylvania Power Company. By order exited July 17, 2020, we struck the Hanleys’ petition
for review as inoperative pursuant to Pa R. A. P. 1701(b)(3) (“A timely order granting reconsideration
under this paragraph shall render inoperative any such notice of appeal or petition for review of a
quasijudicial order theretofore or thereafter filed or docketed with respect to the prior order.”).
10
then filed complaints with the PUC seeking to avoid forced
installation of wireless smart meters in or on their homes.
An [ALJ] sustained, in part, PECO's preliminary objections
to the complaints. The ALJ found that opting out of smart
meter installation was not an available remedy under the law.
However, the ALJ allowed the complaints to go forward for
determinations of whether the individual [Povacz]
Consumers were entitled to accommodations in light of their
health issues.
After several omnibus hearings, the ALJ found one of the
[Povacz] Consumers, Maria Povacz, had demonstrated a
prima facie case that attaching a smart meter to her home
would exacerbate her health condition. The ALJ ordered
PECO to move Ms. Povacz’[ ] meter socket away from her
house and absorb the cost of moving it. The ALJ otherwise
denied relief to Ms. Povacz. The ALJ denied all relief to the
other [Povacz] Consumers.
[Povacz] Consumers filed exceptions with the PUC. PECO
filed exceptions to the portion of the ALJ’s decision regarding
Ms. Povacz that required relocation of her meter. The PUC
overruled [the] exceptions, granted PECO's exception, and
denied all relief . . . . [The Povacz] Consumers then filed
petitions for review in this Court.
Id. at 483-84 (footnotes omitted). In their appeals, the Povacz Consumers argued, in
relevant part, that (1) the mandatory installation of smart meters with no “opt-outs” for
consumers violated their constitutional liberty interest in personal bodily integrity; (2)
Act 129 does not mandate the installation of smart meters without affording reasonable
accommodations to customers who are trying to avoid RF emissions; and (3) the PUC
applied an incorrect burden of proof to the claims under Section 1501 by requiring a
“conclusive causal connection” between RF exposure and adverse health effects. Id.
at 485.
11
Regarding the claim that mandatory smart meter installation violated the
fundamental Fourteenth Amendment10 right to bodily integrity, this Court, following
the reasoning of the United States District Court for the Northern District of Illinois in
Naperville Smart Meter Awareness v. City of Naperville, 69 F. Supp. 3d 830 (N.D. Ill.
2014) (Naperville II), concluded that allegations that smart meters increased the risk
of injury to health were insufficient to state a Fourteenth Amendment claim. Id. at 487.
Likewise, we also concluded that, even assuming that the Povacz Consumers had a
cognizable liberty interest in their bodily integrity, their constitutional claim was not
viable because they failed to plead facts showing that mandatory smart meter
installation was arbitrary. Id. at 487. We accordingly declined “to recognize a viable
claim by [the Povacz] Consumers regarding a violation of their Fourteenth Amendment
liberty interests in bodily integrity” and affirmed the PUC’s dismissal of the
constitutional claim. Id. at 488.
Regarding accommodations, however, we concluded that Act 129 did not,
by its plain language, mandate the installation of smart meters in every consumer’s
home without reasonable accommodation. We therefore concluded that the PUC erred
in its interpretation of Act 129:
[A]lthough Act 129 does appear to anticipate installation of
smart meters on customers’ premises, nothing in the language
of Act 129 facially requires every customer to endure
involuntary exposure to RF emissions from a smart meter.
Rather, the language of Act 129 seems calculated to support
customer choice in the use of smart meter technology.
Therefore, we conclude that Act 129 does not preclude either
PECO or the PUC from accommodating a customer's request
to have RF emissions from that customer’s meter turned off,
to have a smart meter relocated to a point remote from the
customer’s house, or some other reasonable accommodation.
10
U.S. Const. amend. XIV, § 1.
12
We reverse that portion of the PUC's decisions finding it
lacked authority for accommodations of customers’ requests
to avoid RF emissions. We remand to the PUC to allow
consideration of [the Povacz] Consumers’ requests for
accommodations, and determination of what, if any,
accommodations are appropriate, in light of this Court’s
conclusion that Act 129 does not forbid such
accommodations.
Id. at 490.
Regarding the burden of proof that a consumer bears in establishing a
violation of Section 1501, we concluded that a consumer may establish a violation by
proving that a service or facility is either unreasonable or unsafe, and may, but need
not, establish both. Id. at 491. We further opined as follows regarding the applicable
burden of proof to establish that a service or facility is causing adverse health effects:
The PUC found [that] the ALJ correctly imposed a burden of
proof requiring [the Povacz] Consumers to demonstrate
adverse health effects by a preponderance of the evidence.
This required [the Povacz] Consumers to prove that there was
a “conclusive causal connection” between RF exposure from
smart meters and adverse human health effects.
The PUC concedes [that the Povacz] Consumers were not
required to prove harm had actually occurred; the PUC’s
authority extends to claims seeking to prevent harm.
However, where prevention of harm was [the Povacz]
Consumers’ aim, the burden of proof still required
demonstration by a preponderance of the evidence that the
utility’s proposed conduct would create a proven exposure to
harm. The PUC argues that although the occurrence of harm
need not be certain, or even probable, [Povacz] Consumers
incorrectly equated any hazard, however slight, with exposure
to harm. The [court in Naperville Smart Meter Awareness v.
City of Naperville (N.D. Ill., No. 11 C 9299, filed Mar. 22,
2013), 2013 WL 1196580 (Naperville I),] considered this
issue and found that even without an option to deactivate the
13
radio transmitters in the smart meters, the plaintiffs’ claim
would not have been viable. Like [the Povacz] Consumers
here, the Naperville I plaintiffs based their claim on a theory
that the radio waves emitted from the smart meters, together
with other RF-wave-emitting devices in the environment,
have the potential to be harmful. The court in Naperville I
acknowledged the plaintiffs’ contention that certain doctors
believe that over time the public’s cumulative exposure to
low-level RF from devices such as cell phones, radio towers,
and smart meters may pose health risks, such that more
accurate guidelines and standards regarding the safety of RF
exposure are necessary. Nonetheless, the court concluded the
bare allegation that it is unknown whether [the] plaintiffs are
actually being harmed by the level of RF waves emitted from
one smart meter is insufficient to raise a claim for relief that
is more than speculative.
The reasoning of Naperville I concerning the applicable
burden of proof is persuasive. We therefore affirm the burden
applied by the PUC concerning proof of harm from RF
emissions.
Id. at 493-94 (internal citations and quotations omitted). Based on our disposition of
the issues, we held as follows:
Based on the foregoing discussion, we affirm the PUC's
rejection of [the Povacz] Consumers’ constitutional
challenge. We reverse the PUC’s conclusion that it lacks
authority to accommodate [the Povacz] Consumers’ desire to
avoid RF emissions from smart meters and vacate the PUC’s
determination that such accommodation would not be
reasonable. We affirm the PUC’s determination of the burden
of proving harm. We affirm the PUC’s findings of fact. We
remand this matter to the PUC for determinations of whether
accommodations are appropriate for each of the [Povacz]
Consumers, and if so, what those accommodations should be.
On remand, the PUC should consider all reasonable
accommodations, including, but not limited to, deactivation
of the RF emitting functions of the smart meters; installation
of the smart meters at locations remote from [the Povacz]
14
Consumers’ homes; and installation of wired rather than
wireless smart meters, if . . . such technology is available.
Id. at 494-95. The PUC, PECO, and the Povacz Consumers petitioned for allowance
of appeal to the Pennsylvania Supreme Court, which granted review.11
2. The Pennsylvania Supreme Court’s Decision in Povacz
The Supreme Court granted review of five questions, all of which
involved two overarching issues: (1) whether Act 129 mandates universal installation
of smart meters without an “opt-out” mechanism for consumers; and (2) whether the
PUC applied the correct burden of proof to the Povacz Consumers’ claims under
Section 1501. Povacz II, 280 A.3d at 988-89. The Supreme Court ultimately affirmed,
in part, and reversed, in part. Pertinent to the instant case, the Supreme Court
concluded that Act 129 mandates that EDCs like PECO “furnish smart meters to all
electric customers within an electric distribution service area and does not provide
electric customers the ability to opt out of having a smart meter installed.” Povacz II,
280 A.3d at 983. See also id. at 998 (“Considering the overall goal of Act 129 to
promote energy efficiency and conservation in Pennsylvania, the plain language of
Section 2807(f)(2) mandates the system-wide installation of smart meter technology,
including smart meters, with no opt-out provision. We reject the Commonwealth
Court’s contrary holding that, although EDCs are required to furnish smart meters,
customers may choose to reject one.”).
On the question of the availability of accommodations under Section
1501, the Court went on to opine:
11
By Orders exited on December 15, 2020, and July 1, 2021, this Court stayed the proceedings
in the Non-consolidated Smart Meter Cases pending the Pennsylvania Supreme Court’s decision in
Povacz II.
15
A customer seeking affirmative relief from the PUC must
prove by a preponderance of the evidence that the named
utility was responsible or accountable for the problem
described in the complaint and that the offense was a violation
of the Code, a PUC regulation or Order, or a violation of a
PUC-approved tariff.
Although Act 129 does not provide an electric customer with
the right to opt-out of the installation of a smart meter at [his
or her] residence, [he or she] may file a complaint raising a
claim that installation of a smart meter violates Section 1501
of the Code.
....
Pursuant to this section, an EDC (as a public utility) must
provide service that is, inter alia, both safe and reasonable. To
carry [his or her] burden of proof on a Section 1501 claim, a
smart meter challenger may be required to present medical
documentation and/or expert testimony demonstrating that
the furnishing of a smart meter constitutes unsafe or
unreasonable service in violation of Section 1501 under the
circumstances presented.
....
Id. at 999-1000. On the question of how a consumer may prove a violation of Section
1501 by a “preponderance of the evidence,” the Povacz II Court directed:
The preponderance burden requires a customer to prove that
a service or facility is—more likely than not—the cause of the
problem described in [his or her] complaint. Specific to smart
meters and RF emissions, the burden is two-fold. First, a
customer must present expert opinion rendered to a
reasonable degree of scientific certainty that smart meters
emit RFs and that RF emissions cause adverse health effects
and, second, expert opinion rendered to a reasonable degree
of medical certainty that RF emissions from the smart meters,
either alone or cumulative to other sources of RF emissions,
caused [ ] harm. Once the [complainant] produces such
16
evidence, the utility may then defend by providing scientific
and/or medical expert testimony that, within a reasonable
degree of certainty, the RF emissions from smart meters did
not cause the alleged harm. The fact finder must then weigh
the evidence and decide whether it is more likely than not that
the smart meter causes harm to the customer.
....
“Conclusive causal connection” means that the proffered
evidence must support the conclusion that a causal connection
existed between a service or facility and the alleged harm. It
is not possible for evidence that is inconclusive to be
sufficient to meet the preponderance of the evidence standard.
Inconclusive means that the evidence does not lead to a
conclusion of a definite result one way or the other. While the
preponderance of the evidence standard is not stringent, it
does require that the plaintiff’s evidence ever so slightly (like,
with the weight of a feather) supports the plaintiff’s
contention. Evidence that does not support a conclusion (or is
inconclusive) cannot meet that minimal burden. . . . Thus,
where scientific evidence is required to establish the safety of
a service or facility, use of the evidentiary standard of
“conclusive causal connection” to assess the evidence is
correct.
A customer’s evidence certainly need not be based on
absolute certainty, thereby removing all doubt that a factual
assertion is correct. However, evidence of a mere possibility
that harm could result is never sufficient to meet a
preponderance of the evidence standard.
Id. at 1006-07. Applying this standard to the Povacz Consumers’ requests for opt-out
accommodations, the Court concluded:
Claiming an unfettered right to avoid RF emissions, [Povacz
Consumers] request accommodation based on their medical
histories and demonstrated desire to avoid or minimize
exposure to RF emissions. They consider the appropriate
17
relief to be the removal of wireless smart meters installed on
their properties and the installation of an alternative meter. In
response, [PUC and PECO] object to having to provide
[Povacz Consumers] with accommodations absent a finding
that smart meter technology violates Section 1501.
Pursuant to our interpretation of Act 129 as mandating the
installation of smart meter technology, a customer may not
prevent the installation of a smart meter. That said, a customer
is not without recourse, as the provision of accommodations
is a function of Section 1501, not of Act 129. Indeed, absent
a mandate, there would be no need for the complaint
procedure provided in the Code to electric customers who
oppose installation of a smart meter. As in this case, a
customer can file a claim under Section 1501 that smart meter
technology service is unsafe and/or unreasonable. If the
customer establishes by a preponderance of the evidence
based on the totality of the circumstances that smart meter
service violates Section 1501, [he or she] [is] entitled to an
accommodation to the extent allowed by Act 129 and a
utility’s tariff. Thus, by operation of the statute, an EDC
cannot be required to provide accommodation without the
finding of a Section 1501 violation.
....
Act 129 is mandatory, requiring the system-wide installation
of smart meter technology by EDCs, including smart meters.
Although electric customers are not entitled to opt out of
having a smart meter installed at their home, the PUC is
authorized to determine and prescribe a remedy to individual
customers who establish a violation of Section 1501 by a
preponderance of the evidence that furnishing smart meter
technology to them is unsafe or unreasonable. Reference to a
preponderance of the evidence burden of proof and a
“conclusive causal connection” evidentiary standard to assess
whether expert evidence meets that burden is not inconsistent.
The burden for proving a safety or reasonableness violation
under Section 1501 is the same, where the challenge is based
on the effect on the health of the customer.
18
Id. at 1013-14 (citation and footnote omitted).12
II. ISSUES PRESENTED13
From what we can glean from Branagh’s PFR and brief, she raises
multiple issues that fairly can be combined and reorganized as follows: (1) whether Act
129’s mandatory smart meter requirement with no “opt-out” accommodation to
consumers is unconstitutional; (2) whether the PUC applied the correct burden of proof
to Branagh’s Section 1501 claim, and whether the PUC erred in concluding that she
did not satisfy her burden; (3) whether the PUC erred in excluding Branagh’s proffered
scientific articles and admitting Dr. Israel’s testimony as expert opinion; and (4)
whether federal standards for RF emissions should be applied to PECO’s smart meters.
III. DISCUSSION
A. Act 129
Branagh’s first group of issues are controlled by the decisions in Povacz I
and Povacz II. It is now beyond dispute that Act 129 imposes a mandatory smart meter
installation requirement. It also is beyond dispute that Act 129 does not itself provide
for an “opt-out” by consumers who do not want smart meters in their homes. Rather,
consumers who wish to receive reasonable accommodations for health and safety
reasons must establish a violation of Section 1501 of the Code. Any argument that
Branagh makes on appeal that the PUC misinterpreted Act 129 therefore is foreclosed
by Povacz II. Branagh does not identify how or under what law Act 129’s requirements
are unconstitutional or discriminatory, but to the extent that she alleges due process
12
On September 29 and 30, 2022, the PUC and PECO filed status reports in this Court
summarizing the Supreme Court’s decision in Povacz II and arguing that the decisions in Povacz I
and Povacz II are dispositive of all of the issues raised in Branagh’s appeal.
13
“This Court’s review is limited to determining whether the [PUC] violated constitutional
rights, committed an error of law, rendered a decision not supported by substantial evidence, or
violated its rules of practice.” Povacz I, 241 A.3d at 484 n.5 (citation omitted).
19
violations, this Court rejected such arguments in Povacz I, and the Pennsylvania
Supreme Court did not grant review on that question. It also is undisputed in the record
that PECO offered certain accommodations to Branagh, including repositioning the
smart meters to other locations to minimize potential RF exposure. Branagh rejected
that and all other accommodations offered by PECO.
We thus conclude that Branagh’s challenges to Act 129 are without merit.
B. Burden of Proof
Branagh next challenges the burden of proof applied by the PUC to her
Section 1501 claim and the PUC’s conclusion that she did not satisfy that burden. We
again discern no error. As noted above, in Povacz II, the Pennsylvania Supreme Court
reaffirmed that a consumer challenging the safety of public utility services or facilities
under Section 1501 must establish, by a preponderance of the evidence, that the
challenged services or facilities more likely than not caused the complained-of adverse
health effect. In other words, the consumer must establish a “conclusive,” and not
speculative, causal connection. To satisfy that burden here, Branagh was required to
present expert testimony establishing both that PECO’s smart meters and their RF
emissions cause adverse health effects generally and that they in fact caused or
exacerbated Branagh’s health problems. Branagh did not present any expert medical
testimony establishing either of these elements of her claim. Although she submitted
certain medical records, those records did not establish that any of her health problems
stem from smart meter RF emissions. Branagh candidly admitted throughout her
testimony that she does not know whether the RF emissions caused any adverse health
effects. Given certain correlations in time, she merely suspects that they might have
contributed. See C.S.R.R. 0004c, 0006c-07c, 0017c, 0020-21c. The PUC therefore
did not err in concluding that Branagh failed to carry her burden to establish a
20
“conclusive causal connection” between smart meter RF emissions and any adverse
health effects.
Further, even had Branagh carried her initial burden of proof, a public
utility may nevertheless present its own expert opinion evidence to rebut the
consumer’s evidence. Here, PECO presented three witnesses that collectively testified
that the RF emissions from PECO’s smart meters are many times lower than both FCC
standards and other electronic devices in Branagh’s home. PECO also presented expert
medical testimony that, given Branagh’s medical records, there is no conclusive causal
connection between the installation of the smart meter in Branagh’s residence and any
adverse effects to her health. The PUC was free to, and did, give more weight to this
evidence in making its findings, and we will not disturb the PUC’s credibility and
weight-of-the-evidence determinations on appeal.
The PUC both applied the correct burden of proof to Branagh’s Section
1501 claim and did not err in concluding that Branagh did not satisfy that burden.
Branagh’s arguments to the contrary are without merit.
C. Evidentiary Issues
Branagh next argues that the PUC erred in excluding from the record
certain articles that she attempted to introduced to establish the adverse health effects
caused by RF emissions exposure. She also argues that the PUC erred in receiving Dr.
Israel’s testimony as expert opinion. We again discern no error.14
14
Branagh first raised these evidentiary issues in her exceptions to the ALJ Initial Decision.
In reviewing an ALJ’s Initial Decision, the PUC has all of the powers which it would have had in
making the initial decision. See 66 Pa. C.S. § 335(a); Energy Pipeline Company v. Pennsylvania
Public Utility Commission, 662 A.2d 641, 644 (Pa. 1995). The PUC accordingly considered these
evidentiary questions, and we will do the same on appeal.
21
With regard to Branagh’s proffered exhibits that were not admitted into
the record, Branagh argues in her brief that they should have been admitted as viable
scientific studies that support her claim that smart meters pose health risks to humans.
(Branagh Br. at 12.) The PUC addressed this argument and concluded as follows:
Based on our review of the record, we find that [Branagh] did
not provide sufficient evidence from medical experts and
medical societies to satisfy her burden of proof in this case.
[Branagh] presented a letter from the [American Academy of
Environmental Medicine] as well as other articles and
documents, some of which were obtained from the internet.
The ALJ did not admit these documents into the record, based
on PECO’s hearsay objection[.] [H]owever, the ALJ
permitted [ ] Branagh to testify regarding her research and her
concerns based on that research. [ ] We conclude that the
ALJ’s ruling to exclude the documents from the record was
proper under the Pennsylvania Rules of Evidence [Pa. R.E.],
because the documents constitute hearsay (out of court
statements made by the authors of the documents that were
offered by [Branagh] to prove the truth of the matter asserted
in the documents), and do not fall within one of the
recognized exceptions to the rule against hearsay. Even if
these studies had been admitted into evidence without
PECO’s objection, the studies would have been insufficient
to support a finding of fact in this proceeding pursuant to the
Walker/Chapman[15] rule because [ ] Branagh did not present
any other non-hearsay, competent evidence to corroborate the
documents.
(PUC Decision, 25-26; S.R.R. 0059b-60b.) (citations omitted). We agree with the
PUC’s assessment and discern no error, particularly given that Branagh did not object
to the exclusion of these documents from the record.
15
See Walker v. Unemployment Compensation Board of Review, 367 A.2d 366, 370 (Pa.
Cmwlth. 1976); Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 610 n. 8
(Pa. Cmwlth. 2011).
22
With regard to Dr. Israel, the PUC noted that Dr. Israel was qualified as
an expert witness in the fields of medicine, medical research, and health related to
“power frequency fields and [RF] fields” and that “[ ] Branagh stated that she did not
object to Dr. Israel’s qualification as an expert.” (PUC Decision, 19; S.R.R. 0053b.)
The PUC concluded that, given his extensive credentials, see S.R.R. 0211b-18b, Dr.
Israel properly was qualified as an expert under Pa. R.E. 702 and testified credibly
regarding the relationship between RF emissions and human health. (PUC Decision,
20; S.R.R. 0054b.) The PUC further concluded that “Dr. Israel’s unequivocal opinion
satisfies PECO’s burden of production and constitutes legally competent evidence to
support a finding on the issue of a causal connection between RF fields from a [smart
meter] and adverse human health effects.” (Id.) Based on our review of Dr. Israel’s
credentials and testimony, and given the fact that Branagh did not object to his
certification as an expert, we discern no error in the PUC’s consideration of his
testimony as expert opinion.
D. Federal Legislation and FCC Regulations
Branagh argues finally that an interpretation of Act 129 as mandating
smart meter installation “with no regard for health exemptions” violates the federal
Radiation Control for Health and Safety Act of 1968 (RCHSA)16 and the federal
Energy Policy Act of 2005 (EPACT).17 (Branagh Br. at 11.) She further argues that
the FCC regulations referenced and relied upon by the PUC are invalid.
16
RCHSA is codified in the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 360hh-360ss.
17
Pub. L. No. 109–58, 119 Stat. 594 (2005). Section 1252 of EPACT amended the Public
Utility Regulatory Policies Act of 1978 (PURPA), 16 U.S.C. § 2621(d), to add provisions relating to
smart metering. PURPA allows state regulatory authorities, like the PUC, to adopt standards or rules
affecting electric utilities that are different from the standards set forth in 16 U.S.C. §§ 2621-2627.
See 16 U.S.C. § 2627(b).
23
Branagh’s arguments based on federal law fail for at least two reasons.
First, these issues were not raised before the PUC and, therefore, are waived on appeal.
See Pa. R.A.P. 1551(a) (“Review of quasijudicial orders shall be conducted by the court
on the record made before the government unit. Only questions raised before the
government unit shall be heard or considered . . . .”). Certain exceptions to this waiver
rule exist, but none apply here. See id. Second, regarding Branagh’s challenges to Act
129 based on RCHSA and EPACT, even assuming that these issues had been raised
before the PUC, and further assuming that the PUC would have had jurisdiction to
consider them, Branagh’s arguments are based on a mischaracterization of how Act
129 has been interpreted by the PUC, this Court, and the Pennsylvania Supreme Court.
Neither the PUC, nor this Court in Povacz I, nor the Pennsylvania Supreme Court in
Povacz II, interpreted Act 129 to mandate smart meter installation without regard to
health-based exemptions. Rather, as has now been made clear, although Act 129 does
not itself contain an automatic opt-out provision based solely on consumer preference,
a consumer nevertheless may obtain accommodations, including a potential exemption,
if he or she can establish a violation of Section 1501. Thus, Branagh’s characterization
of Act 129 is inaccurate and cannot form the basis of any claims based on any alleged
inconsistencies with federal law.18
IV. CONCLUSION
Because we conclude that all of Branagh’s issues on appeal are without
merit or waived, we affirm the PUC.
________________________________
PATRICIA A. McCULLOUGH, Judge
18
See also Romeo, 154 A.3d at 428 (Act 129 does not violate, and is not preempted by,
EPACT because the federal standards set forth therein are supplemental to state standards; each state
is required to consider the federal standards, but nevertheless may adopt different standards).
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Janice Denito Branagh, :
Petitioner :
: No. 1857 C.D. 2019
v. :
:
Pennsylvania Public Utility :
Commission , :
Respondent :
ORDER
AND NOW, this 6th day of July, 2023, the November 14, 2019 order
of the Pennsylvania Public Utility Commission hereby is AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge