IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard N. Myers, :
Petitioner :
:
v. : No. 1337 C.D. 2019
:
Pennsylvania Public Utility : Submitted: April 28, 2023
Commission, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY JUDGE McCULLOUGH FILED: November 3, 2023
Richard N. Myers (Petitioner) petitions for review, pro se, of the August
29, 2019 Opinion and Order (Final Order) of the Pennsylvania Public Utility
Commission (PUC) dismissing Petitioner’s Formal Complaint filed against PPL
Electric Utilities Corporation (PPL) due to his failure to prove that PPL’s installation
of automated metering infrastructures (smart meters) at his properties constitutes
unsafe or unreasonable service under Section 1501 of the Public Utility Code (Code),
66 Pa. C.S. §1501. Because we conclude that Petitioner’s issues on appeal have been
resolved by the Pennsylvania Supreme Court’s recent decision in Povacz v.
Pennsylvania Public Utility Commission, 280 A.3d 975 (Pa. 2022), we affirm the
PUC’s Order.
I. FACTS AND PROCEDURAL HISTORY
On July 20, 2017, PPL informed Petitioner that a smart meter would be
installed in his residence in accordance with Section 2807(f)(1) and (2) of the Code, 66
Pa. C.S. § 2807(f)(1) and (2) (Act 129).1 (Reproduced Record (R.R.) at 291a.) Having
concerns regarding his exposure to radio frequency (RF) fields or electromagnetic
energy from the smart meter, Petitioner filed a Complaint with the PUC on August 11,
2017, seeking to prohibit PPL from installing smart meters at his home and his 11 rental
properties located within Lancaster and Columbia, Pennsylvania. Id at 292a. Petitioner
claimed unsafe or unreasonable utilities services under Section 1501 of the Code and
requested that PPL provide scientific research studies to show that high frequency
electromagnetic radiation from smart meters is safe. Id. Petitioner further claimed that
the PUC ignored an opt-out provision within Act 129 and requested an exemption from
smart meter installation. Id.
PPL filed an Answer to the Complaint on September 11, 2017. In its
Answer, PPL denied that smart meters pose any health or safety risk and asserted that
1
Section 2807 of the Code was added by the Act of October 15, 2008, P.L. 1592, No. 129,
and took effect on November 14, 2008. Section 2807(f)(1) and (2) of the Code provides:
(f) Smart meter technology and time of use rates.—
(1) Within nine months after the effective date of this paragraph,
electric distribution companies [(EDCs)] shall file a smart meter
technology procurement and installation plan with [the PUC] for
approval. The plan shall describe the smart meter technologies the
[EDC] proposes to install in accordance with paragraph (2).
(2) [EDCs] shall furnish smart meter technology as follows:
(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)(1) and (2).
2
smart meters meet all applicable safety requirements under state and federal law. Id.
PPL noted that Petitioner failed to allege that he or his tenants suffered from any
specific health or safety effects resulting from the installation of smart meters. Id. PPL
further claimed that nothing in the Code states that a customer can opt-out of smart
meter installation. Id.
The matter was assigned to Administrative Law Judge Elizabeth H.
Barnes (ALJ Barnes) for an evidentiary hearing on April 2, 2018. Petitioner appeared
pro se and presented the testimony of David O. Carpenter, M.D. Id. at 293a. PPL
appeared with counsel and presented the testimony and exhibits of Mr. William
Hennegan, Mr. Scott Larson, Christopher Davis, Ph.D., and Mark Israel, M.D. Id.
On August 16, 2018, ALJ Barnes issued her Initial Decision denying and
dismissing Petitioner’s Complaint. Id at 293a-94a. The ALJ found, in relevant part, that
Petitioner failed to prove by a preponderance of the evidence that the installation of
smart meters within Petitioner’s properties constitutes unsafe or unreasonable service
under Section 1501. ALJ Barnes further found that there is no provision in the Code or
the PUC’s Regulations or Orders that allows a customer to “opt-out” of smart meter
installation. Id.
Petitioner filed 19 Exceptions to the Initial Decision, and PPL filed only
one, all of which were consolidated and referred to the PUC for final disposition. On
August 29, 2019, the PUC issued its Opinion and Order denying all of Petitioner’s
Exceptions, granting PPL’s Exception,2 and adopting the Initial Decision with one
modification as a Final Order.
2
PPL filed an Exception to ALJ Barnes’ fire safety recommendations, stating that it was
unnecessary given the company’s established practices and procedures. The PUC found that ALJ
Barnes’ fire concerns were not supported by the record and modified the Initial Decision to eliminate
the fire safety recommendations.
3
On September 25, 2019, Petitioner filed a Petition for Review (PFR) of
the Final Order. After the filing of briefs, this Court stayed the proceedings in the
instant matter on January 15, 2020, pending the disposition of three consolidated
appeals, containing the same or similar Act 129 smart meter installation issues as those
raised by Petitioner.
II. ISSUES PRESENTED
In his pro se PFR, Petitioner lists a number of arguments but generally
contends that the PUC committed an error of law in its interpretation of Act 129 by
denying his request to opt-out of smart meter installation. He further argues that the
PUC incorrectly weighed evidence and improperly found that he failed to sustain his
burden of proof that the installation of smart meters constitutes unsafe or unreasonable
service in violation of Section 1501 of the Code.
III. DISCUSSION
A. The Pennsylvania Supreme Court’s Decision in Povacz
Petitioner contends that the PUC erred by holding Act 129 mandated
smart metering for all Pennsylvanians with no opt-out provision. However, the
Pennsylvania Supreme Court has held that “Act 129 . . . does not provide electric
customers the ability to opt-out of having a smart meter installed.” Povacz, 280 A.3d
at 983.
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, 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
4
concluded that Act 129 mandates 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.” Povacz, 280 A.3d
at 983. See also id. at 998-99 (“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.”).
Applying this standard to the Povacz Consumers’ requests for opt-out
accommodations, the Supreme 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
relief to be the removal of wireless smart meters installed on
their properties and the installation of an alternative meter. In
response, [the PUC and Pennsylvania Electric Company
(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
5
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.
Id. at 1013-14 (citation and footnote omitted) (emphasis added).
The PUC’s Opinion and Order reflect that the PUC decided this case
consistent with the Supreme Court’s decision in Povacz. Petitioner cannot opt-out of
smart meter installation and has failed to satisfy the burden to receive an
accommodation. Povacz makes clear that “Act 129 … does not provide electric
customers the ability to opt-out of having a smart meter installed.” Povacz, 280 A.3d
at 983.
B. Proof that installation of Smart Meters on Property violates Section
1501 of the Code
Petitioner’s second issue concerns how a consumer may prove a violation
of Section 1501 by a “preponderance of the evidence,” and he argues that he met that
standard. He further argues that the conclusive causal connection to meet the
preponderance of the evidence standard is impossible to prove. The PUC contends it
6
properly determined that Petitioner failed to prove that installation of the smart meter
on his properties violates Section 1501 of the Code, and that the PUC applied the
correct burden of proof. We must agree. The Povacz 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 [customer] produces such
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
7
“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 (emphasis added).
As noted by the PUC, Petitioner argues that RF emissions are unsafe, and
makes arguments concerning the Federal Communication Commission’s guidelines.
As noted above, the Court in Povazc held that a customer alleging a violation of Section
1501 as to harm from the RF emissions must present an expert opinion rendered to a
reasonable degree of scientific certainty that RF emissions from the smart meters cause
adverse health effects, and an expert opinion rendered to a reasonable degree of medical
certainty that RF emissions either alone or cumulative to other sources of RF emissions,
cause harm. Id. at 1006.
The Povacz Court went further to note that, “[e]ven if the customer’s
expert testimony was sufficient to meet the preponderance of the evidence burden of
proof, the PUC was free to conclude that the contrary evidence was more weighty.”
Povacz, 280 A.3d at 1008 (emphasis added); see also Lyft, Inc. v. Pennsylvania Public
Utility Commission, 145 A.3d 1235, 1240 (Pa. Cmwlth. 2016). It further explained, in
reversing this Court’s remand, that a customer is required to prove by a preponderance
of the evidence that the furnishing of a service or facility is “unsafe or unreasonable.”
Povacz, 280 A.3d at 1012 (emphasis added). The Supreme Court found that customers
can only request a reasonable accommodation after meeting the burden of proving a
violation of Section 1501, and any accommodation is limited by Act 129 and the terms
of the EDC’s tariff. Id. at 1013-14.
8
Here, after finding that PPL met its burden of proof, and that the burden
shifted to Petitioner who did not introduce any further evidence demonstrating a causal
connection, the PUC agreed with ALJ Barnes that there was insufficient evidence of
adverse effect to Petitioner by the smart meter or that it will constitute unsafe or
unreasonable service or alleged harm. The PUC also found that Petitioner had not
proven a violation of Section 1501 and cannot now seek an accommodation. PPL and
the PUC gave less weight to Petitioner’s studies on biological and adverse health
effects from non-thermal radiation. Rather, the PUC found that PPL’s experts, Dr.
Davis and Dr. Israel, were well qualified and persuasive. Petitioner’s arguments
essentially ask this Court to reweigh the evidence, which it cannot do. Energy
Conservation Council of Pennsylvania. v. Pennsylvania Public Utility Commission, 25
A.3d 440, 449 (Pa. Cmwlth. 2011) (“the Court should neither ‘substitute its judgment
for that of the PUC when substantial evidence supports the PUC’s decision on a matter
within the [PUC’s] expertise,’ nor should it indulge the process of weighing evidence
and resolving conflicting testimony”).
Therefore, the Court must affirm the PUC’s determination.3
3
Before ALJ Barnes, Petitioner attempted to rely on materials not introduced before the PUC
and raised for the first time in Petitioner’s Brief and/or Reply Brief. ALJ Barnes declined to reopen
the record as she found no new or novel evidence showing any changes in the facts or law that would
warrant such. See 52 Pa. Code §§ 5.431(b), 5.571(d) (after close of the record additional matter may
be relied on only for good cause shown, and the record may be reopened only if conditions of fact or
law have changed). It is clear that Pa.R.A.P. 1951(a) provides that any document not made part of
the certified record may not become part of a record on appeal. Hence, when reviewing an
administrative agency’s decision, this Court may not consider matters that are not part of the record
before the agency. See Pa.R.A.P. 1951(a). Petitioner now also claims here, for the first time, that the
PUC violated 18 Pa.C.S. §§ 2701-2702 regarding simple assault and aggravated assault because the
smart meters are harming customers and that by mandating smart meters the PUC violated article I
of the Pennsylvania Constitution, Pa. Const., art. I, and the Fourth Amendment of the United States
Constitution, U.S. Const. amend XIV. However, because Petitioner did not raise these issues before
the PUC, this Court cannot review the same as they are deemed waived. See Pa.R.A.P. 1551(a). The
(Footnote continued on next page…)
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IV. CONCLUSION
Accordingly, in light of the Supreme Court’s holdings in Povacz, which
are dispositive of Petitioner’s issues on appeal, and Petitioner’s failure to raise other
issues before the PUC which are now deemed waived, we must affirm the PUC’s Order.
________________________________
PATRICIA A. McCULLOUGH, Judge
Judge Fizzano Cannon did not participate in this decision.
exceptions concerning validity of a statute, questions involving jurisdiction and other issues that could
have been raised before the government unit are not applicable here. See Sugar House HSP Gaming,
L.P. v. Pennsylvania Gaming Control Board, 162 A.3d 353, 365 (Pa. 2017).
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard N. Myers, :
Petitioner :
:
v. : No. 1337 C.D. 2019
:
Pennsylvania Public Utility :
Commission, :
Respondent :
ORDER
AND NOW, this 3rd day of November, 2023, the August 29, 2019
Opinion and Order of the Pennsylvania Public Utility Commission is hereby
AFFIRMED.
________________________________
PATRICIA A. McCULLOUGH, Judge