IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nelson Hess, :
Petitioner :
:
v. : No. 1155 C.D. 2020
: 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 WALLACE FILED: July 14, 2023
Nelson Hess (Hess), pro se, petitions for review of the order of the
Pennsylvania Public Utility Commission (PUC) denying Hess’s exceptions to an
administrative law judge’s (ALJ) Initial Decision, which dismissed Hess’s Formal
Complaint on the basis that Hess failed to prove by a preponderance of the evidence
that installation of a smart meter at his residence constituted unsafe or unreasonable
service under Section 1501 of the Public Utility Code1 (Code), 66 Pa.C.S. § 1501,2
or that PPL Electric Utilities Corporation (PPL) violated any other provision of the
1
66 Pa.C.S. §§ 101-3316.
2
Section 1501 of the Code requires public utilities to “furnish and maintain adequate, efficient,
safe, and reasonable service and facilities” to their customers. 66 Pa.C.S. § 1501.
Code, a PUC order or regulation, or a PUC-approved tariff. Hess also petitions for
review of the PUC’s subsequent order denying his petition for rehearing and
reconsideration. Upon review, we affirm.
I. Background and Procedural History
In 2008, the General Assembly enacted Act 129,3 which, in relevant part,
directed electric distribution companies (EDC) in Pennsylvania to “furnish smart
meter technology . . . [i]n accordance with a depreciation schedule not to exceed 15
years.” 66 Pa.C.S. § 2807(f)(2)(iii). In June 2014, PPL filed a Smart Meter Plan
with the PUC to comply with the requirements of Act 129, in which PPL outlined
its plans to install Radio Frequency Mesh meters (smart meters) on all of its
customers’ lines. Reproduced Record (R.R.) at 8.4
Hess owns a residence in Schuylkill County, Pennsylvania. R.R. at 5. PPL,
as Hess’s EDC, notified Hess it would be replacing Hess’s meter with a smart meter.
Id. On July 6, 2018, Hess filed a Formal Complaint with the PUC requesting that
the PUC prohibit PPL from installing a smart meter at his residence. Id. at 3-4. In
his Formal Complaint, Hess alleged he gets headaches when he is at his sister’s
home, which has a smart meter. Id. at 87. Through his initial Formal Complaint and
the two amendments that followed, Hess averred that the installation of a smart meter
would harm his health, safety, and privacy. Id.
ALJ Elizabeth H. Barnes ultimately conducted an evidentiary hearing on
Hess’s Second Amended Complaint on May 14, 2019. R.R. at 3-4. Hess appeared
pro se and presented two exhibits. Id. at 4. The first was an article regarding the
effects of smart meters. Id. The second was a printout of an internet article regarding
3
Act of October 15, 2008, P.L. 1592, No. 129.
4
Because Hess failed to paginate the Reproduced Record, we use the pagination from the
electronically-stored version of his Reproduced Record.
2
cybersecurity. Id. PPL was represented by counsel and presented 4 written
statements, 15 exhibits, and 4 witnesses, including Christopher Davis, Ph.D. (Dr.
Davis) and Mark Israel, M.D. (Dr. Israel). Id. at 4-5.
Dr. Davis has a Ph.D. in physics, is a full-time university professor, and
actively conducts scientific research on radio frequency fields, including the type
produced by PPL’s smart meters. R.R. at 7. Dr. Israel is a Harvard-trained,
board-certified medical doctor, a professor, and the Executive Director of the Israel
Cancer Research Fund in New York City.5 Id. at 9. Dr. Israel has conducted
extensive medical research in biochemistry, cellular biology, cancer, molecular
biology, and molecular genetics. Id. Dr. Davis and Dr. Israel both opined that the
radio frequency fields PPL’s smart meter devices emit are not harmful to one’s
health. Id. at 7-11.
In dismissing Hess’s Second Amended Complaint, ALJ Barnes determined
there is no provision in the Code to allow a customer to opt out from the installation
of a smart meter, rendering the relief Hess requested outside the PUC’s authority
and jurisdiction. R.R. at 15. With regard to Hess’s health and safety concerns, ALJ
Barnes determined Hess did “not establish a prima facie case to show that any [radio
frequency] exposure levels from the [smart] meter will cause adverse health effects.”
Id. at 18. In doing so, ALJ Barnes noted Hess did not support his assertions his
health would deteriorate if PPL installed a smart meter at his residence with any
competent medical evidence. Id. at 19. In addition, ALJ Barnes noted PPL’s expert
witnesses thoroughly refuted Hess’s assertions. Id. at 19-22. ALJ Barnes also found
Hess did not provide evidentiary support for his data privacy concerns, whereas PPL
provided substantial evidence to refute those concerns. Id. at 22-23.
5
The Israel Cancer Research Fund is an international charitable fund for medical and scientific
research programs. R.R. at 9.
3
Hess filed exceptions to the ALJ’s Initial Decision with the PUC, raising
numerous allegations of error. See R.R. at 29-41. By order dated December 19,
2019, the PUC denied Hess’s exceptions. See id. at 44-78. Thereafter, Hess filed a
request for rehearing and reconsideration with the PUC, asserting he had new
evidence in the form of scientific studies and that new events occurred since the
close of the record, in that he suffered a stroke, which he claims was caused by
exposure to a smart meter at a relative’s residence. Id. at 80-83.
By Order dated October 8, 2020, the PUC denied Hess’s request for rehearing
and reconsideration. R.R. at 86. The PUC noted a petition for reconsideration must
“raise ‘new and novel arguments’ not previously heard or considerations which
appear to have been overlooked or not addressed by the Commission.” Id. at 90
(citing Duick v. Pa. Gas & Water Co., 56 Pa. P.U.C. 553, 559 (1982)). The PUC
also noted “a petition for rehearing under Subsection 703(f) of the Code, 66 Pa.C.S.
§ 703(f), must allege newly discovered evidence not discoverable through the
exercise of due diligence prior to the close of the record.” R.R. at 90 (citing Duick,
56 Pa. P.U.C. at 558).
In denying Hess’s requests for rehearing and reconsideration, the PUC
concluded Hess’s allegedly new evidence “was discoverable and thus available to
[Hess] prior to the close of the record,” and that the arguments Hess presented were
simply repetitions of the health, safety, and privacy concerns he raised in his Second
Amended Complaint. R.R. at 95, 98-100. The PUC also concluded Hess failed to
allege he possessed competent evidence, in the form of an expert opinion, to
establish a causal connection between his stroke and exposure to radio frequency
fields. Id. at 97.
4
Hess then filed a Petition for Review6 in this court, arguing that: (1) the PUC
incorrectly interpreted Act 129 as a mandate to universal deployment of smart
meters, (2) the installation of a smart meter would endanger his health, (3) the
installation of a smart meter would violate his personal privacy rights, (4) the PUC
erred in accepting the biased opinions of Dr. Davis and Dr. Israel, (5) he did not have
an adequate opportunity to provide scientific studies before his hearing in May 2019
due to his health issues at the time, and (6) the PUC improperly denied his request
for a rehearing. See Petition for Review at 2-4.
On March 22, 2021, this Court issued an order staying this matter while the
Pennsylvania Supreme Court considered a pending appeal of this Court’s opinion in
Povacz v. Pennsylvania Public Utility Commission, 241 A.3d 481 (Pa. Cmwlth.
2020) (Povacz I), aff’d in part, rev’d in part, 280 A.3d 975 (Pa. 2022) (Povacz II).
The petitioner in that pending appeal raised similar arguments as Hess in opposition
to the installation of a smart meter at her residence. On August 16, 2022, the
Pennsylvania Supreme Court issued Povacz II. In Povacz II, the Pennsylvania
Supreme Court stated
we conclude that Act 129 does mandate that EDCs 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. An electric customer with concerns about smart
meters may seek an accommodation from the PUC or EDC, but to
obtain one the customer must establish by a preponderance of the
6
This Court received a letter from Hess on October 14, 2020, stating he wished to appeal the
PUC’s October 8, 2020 order. This Court responded by notifying Hess he needed to file a petition
for review that complied with the Pennsylvania Rules of Appellate Procedure and pay the
appropriate filing fee. Hess then filed an acceptable Petition for Review and paid his filing fee
within the time this Court allotted. All references in this memorandum opinion to Hess’s Petition
for Review refer to his second filing rather than his initial letter indicating his desire to appeal.
5
evidence that installation of a smart meter violates Section 1501 [of the
Code].
Povacz II, 280 A.3d at 983-84 (footnote omitted). The Court noted that “[t]o
establish a claim by a preponderance of the evidence means to offer evidence that
outweighs or is more convincing than, by even the smallest amount, the probative
value of the evidence presented by the opposing party.” Id. at 999 n.25.
In this specific context, the Court explained
[t]he preponderance burden requires a customer to prove that a service
or facility is — more likely than not — the cause of the problem
described in their complaint. See Popowsky v. Pa. Pub. Util. Comm’n,
. . . 937 A.2d 1040, 1055 n.18 ([Pa.] 2007) (“This Court has
characterized a preponderance of the evidence as tantamount to a ‘more
likely than not’ inquiry[.]”). Specific to smart meters and [radio
frequency] 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 [radio frequencies] and that [radio
frequency] emissions cause adverse health effects and, second, expert
opinion rendered to a reasonable degree of medical certainty that [radio
frequency] emissions from the smart meters, either alone or cumulative
to other sources of [radio frequency] emissions, caused them harm.
Id. at 1006.
On November 1, 2022, this Court lifted its stay in this matter and directed the
parties to file briefs. Hess filed his brief, in which he raised the following four
questions for our review:
1. Has [PPL] conducted tests and provided evidence to prove that
pulse modulated radiofrequency radiation transmitted by their [sic] . . .
smart meter is safe?
Answer: No.
2. Was the Federal Communications Commission (FCC) able to
provide acceptable evidence to U.S. District Court of the Washington
DC circuit in Environmental Health ETAL v FCC (2021) that FCC’s
6
non-thermal radiofrequency radiation guidelines are adequately
protective of public health?
Answer: No.
3. Do thousands upon thousands of scientific studies report adverse
health effects from non-thermal radiofrequency radiation, the same
type transmitted by PPL’s . . . smart meters?
Answer: Yes
4. Are PPLs customers being injured and made to suffer from
radiofrequency radiation transmitted by the PPL smart meter?
Answer: Yes
Petitioner’s Br. at 4.
II. Analysis
In reviewing an order of the PUC, we are limited to determining whether
substantial evidence supports the PUC’s findings of fact or whether the PUC
committed an error of law, violated a party’s constitutional rights, or violated its own
procedures. Popowsky v. Pa. Pub. Util. Comm’n, 910 A.2d 38, 48 (Pa. 2006).
Substantial evidence is “such relevant evidence that a reasonable mind might accept
as adequate to support a conclusion. More is required than a mere trace of evidence
or a suspicion of the existence of a fact sought to be established.” Povacz II, 280
A.3d at 1007 (citation omitted).
Initially, we note Hess’s statement of questions involved in his brief does not
raise the exact issues Hess raised before the PUC. Pennsylvania Rule of Appellate
Procedure 2116(a) states that “[n]o question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.” Pa.R.A.P.
2116(a). This Court has gleaned that the issues on appeal generally relate to whether
installation of a smart meter is harmful to Hess’s health. To the extent Hess’s
statement of questions involved overlaps with the issues addressed below, we
interpret the questions to be “fairly suggested thereby,” and will reach the merits of
7
Hess’s issues. See e.g. Richardson v. Pa Ins. Dep’t, 54 A.3d 420, 425-29 (Pa.
Cmwlth. 2012) (“when it comes to compliance with the Pennsylvania Rules of
Appellate Procedure, ‘this Court is generally inclined to construe pro se filings
liberally’”) (citation omitted).
All of Hess’s questions on appeal are subsumed into a broader issue dealing
with whether the installation of a smart meter is harmful to his health. Couched in
our standard of review, the issue becomes whether substantial evidence exists to
support the PUC’s holding that Hess failed to prove by a preponderance of the
evidence a conclusive causal connection between radio frequency emissions from
the smart meter and adverse health effects to him from having the meter installed.
Our Supreme Court’s decision in Povacz II establishes that Act 129 mandates
smart meters for all EDC customers, and a customer carries the burden of proof
before the ALJ to establish the installation of a smart meter at his or her residence
would violate Section 1501 of the Code. See Povacz II, 280 A.3d at 1006. At the
evidentiary hearing in this matter, Hess merely testified and presented two articles
as exhibits. This was inadequate to carry his burden of proof, which required the
presentation of specific expert testimony. See id.
III. Conclusion
For the reasons set forth above, we affirm the PUC’s orders.
______________________________
STACY WALLACE, Judge
Judge Fizzano Cannon did not participate in the decision in this case.
8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nelson Hess, :
Petitioner :
:
v. : No. 1155 C.D. 2020
:
Pennsylvania Public Utility :
Commission, :
Respondent :
ORDER
AND NOW, this 14th day of July, 2023, the December 19, 2019 order of the
Pennsylvania Public Utility Commission denying Nelson Hess’s exceptions to the
Administrative Law Judge’s June 17, 2019 Initial Decision is AFFIRMED. The
Pennsylvania Public Utility Commission’s subsequent October 8, 2020 order
denying Nelson Hess’s Petition for Rehearing and Reconsideration of the
Pennsylvania Public Utility Commission’s December 19, 2019 order is also
AFFIRMED.
______________________________
STACY WALLACE, Judge