Sunrise Energy, LLC v. FirstEnergy Corp. and West Penn Power Company

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sunrise Energy, LLC :
:
v. : No. 1282 C.D. 2015
: Argued: June 8, 2016
FirstEnergy Corp. and West Penn :
Power Company, :
Appellants :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge

OPINION
BY PRESIDENT JUDGE LEAVITT FILED: October 14, 2016

FirstEnergy Corporation and West Penn Power1 (collectively, West
Penn) appeal an order of the Washington County Court of Common Pleas (trial
court) overruling their preliminary objections to a complaint filed by Sunrise
Energy, LLC (Sunrise Energy). Sunrise Energy, inter alia, seeks declaratory relief
and damages for breach of contract. West Penn filed a motion to dismiss asserting
that the matter should be transferred to the Pennsylvania Public Utility
Commission (PUC) because the dispute requires the construction of the Alternative
Energy Portfolio Standards Act (Alternative Energy Act).2 The trial court
concluded, however, that a court of common pleas was competent to construe the
terms of the Alternative Energy Act. Because the legislature did not authorize the

1
West Penn Power is a wholly owned subsidiary of FirstEnergy Corporation.
2
Act of November 30, 2004, P.L. 1672, 73 P.S. §§1648.1 – 1648.8.
PUC, or any other state agency with responsibilities in the area of alternative
energy, to adjudicate a dispute arising from the Alternative Energy Act, we affirm
the order of the trial court.
Background
Sunrise Energy operates a 950 kilowatt solar power facility in
Washington County, Pennsylvania; West Penn is an electric distribution company.3
Amended Complaint, ¶8. On October 21, 2010, Sunrise Energy and West Penn
entered into an “Electric Service Agreement” that designated Sunrise Energy as the
“customer.” Amended Complaint, Exhibit 2; Reproduced Record (R.R.__) at 27a-
29a. In accordance with this contract, West Penn agreed to purchase the excess
electricity generated by Sunrise Energy. Amended Complaint, Exhibit 6; R.R. 40a.
Sunrise Energy measures the electricity it generates and the electricity it consumes
through the use of a bidirectional electricity meter. This measurement is known as
“net metering.”
As a condition to its agreement to purchase electricity from Sunrise
Energy, West Penn required Sunrise Energy to pay for certain infrastructure
improvements. Sunrise Energy did so in two payments: the first payment was in
the amount of $29,804.40 and the second was in the amount of $39,147.66.

3
Section 2 of the Alternative Energy Act states that the term electric distribution company “shall
have the same meaning given to it in 66 Pa. C.S. Ch. 28 (relating to restructuring of electric
utility industry).” 73 P.S. §1648.2. That meaning follows:
“Electric distribution company.” The public utility providing facilities for the
jurisdictional transmission and distribution of electricity to retail customers,
except building or facility owners/operators that manage the internal distribution
system serving such building or facility and that supply electric power and other
related electric power services to occupants of the building or facility.
66 Pa. C.S. §2803.

2
Amended Complaint, ¶30. Both parties to the Electric Service Agreement believed
that Sunrise Energy was a customer-generator within the meaning of the
Alternative Energy Act and, as such, eligible to sell the electricity it generated in
excess of what it consumed. Amended Complaint, ¶97 and Exhibit 2; R.R. 27a-
32a.
On May 22, 2014, West Penn terminated its Electric Service
Agreement with Sunrise Energy for the stated reason that Sunrise Energy did not
qualify for net metering. Amended Complaint, ¶38. Stated otherwise, Sunrise
Energy lacked a sufficient “native retail load.” Amended Complaint, ¶41. West
Penn asserted that Sunrise Energy was not a consumer-generator but, in actuality,
an electric generation supplier.4 West Penn notified Sunrise Energy that it
intended to compensate Sunrise Energy at a rate other than that set forth in its Net

4
Section 2 of the Alternative Energy Act states that the term electric generation supplier “shall
have the same meaning given to it in 66 Pa. C.S. Ch. 28 (relating to restructuring of electric
utility industry).” 73 P.S. §1648.2. That meaning follows:
“Electric generation supplier” or “electricity supplier.” A person or corporation,
including municipal corporations which choose to provide service outside their
municipal limits except to the extent provided prior to the effective date of this
chapter, brokers and marketers, aggregators or any other entities, that sells to end-
use customers electricity or related services utilizing the jurisdictional
transmission or distribution facilities of an electric distribution company or that
purchases, brokers, arranges or markets electricity or related services for sale to
end-use customers utilizing the jurisdictional transmission and distribution
facilities of an electric distribution company. The term excludes building or
facility owner/operators that manage the internal distribution system serving such
building or facility and that supply electric power and other related power services
to occupants of the building or facility. The term excludes electric cooperative
corporations except as provided in 15 Pa. C.S. Ch. 74 (relating to generation
choice for customers of electric cooperatives).
66 Pa. C.S. §2803. The amended complaint does not support West Penn’s contention that
Sunrise Energy is an electric generation supplier because there is no allegation that Sunrise
Energy sells electricity “to end use customers.”

3
Energy Metering Rider and to recover its prior overpayments. Amended
Complaint, ¶43.
On February 20, 2014, two months before West Penn terminated its
Electric Service Agreement with Sunrise Energy, the PUC published a proposed
amendment to its net metering regulation in the Pennsylvania Bulletin. The
amendment proposed to require customer-generators to maintain “an independent
retail load” in addition to meeting the other requirements for customer-generators
set forth in the Alternative Energy Act. The PUC explained its proposed
amendment as follows:

Currently, Section 75.13(a) requires EDCs [Electric
Distribution Companies] to offer net metering to customer-
generators and provides that EGSs [Electric Generation
Suppliers] may offer net metering to customer-generators under
the terms and conditions set forth in agreements between the
EGS and the customer-generator taking service from the EGS.
The current regulation is silent as to which customer-
generators can net meter, other than that they must be using
Tier I or Tier II alternative energy sources.
We have added a provision for DSPs [Default Service Provider]
and have moved the EGS net metering role to subsection
75.13(b) and re-lettered the remaining subsections. In our
proposed new section (a), we require EDCs and DSPs to offer
net metering to customer-generators that generate electricity on
the customer-generator’s side of the meter using Tier I or Tier
II alternative energy sources, on a first come, first served basis,
provided they meet certain conditions.

The first condition requires the customer-generator to have
load, independent of the alternative energy system, behind the
meter and point of interconnection of the alternative energy
system. To be independent, the electric load must have a
purpose other than to support the operation, maintenance or
administration of the alternative energy system. This provision

4
 makes explicit what was previously implied in the [Alternative
Energy] Act and the regulations.

This requirement is implied in the [Alternative Energy] Act
definition of net metering where it states that net metering is the
means of measuring the difference between the electricity
supplied by an electric utility and the electricity generated by
the customer-generator when any portion of the electricity
generated by the alternative energy generating system is used to
offset part or all of the customer-generator’s requirements for
electricity. If there is no independent load behind the meter and
point of interconnection for the alternative energy system, by
definition, the customer-generator has no requirement for
electricity to offset. In addition, this requirement is implied in
the current regulations, where it states that EDCs shall offer net
metering to customer-generators that generate electricity on the
customer-generator’s side of the meter. Again, there would be
no need for a customer’s electric meter if there was no
independent demand for electricity. Furthermore, we note that
both alternative and traditional electric generation facilities
require electric service to start, operate and maintain those
facilities. Thus, to preclude utilities, such as merchant
generators, from qualifying for net metering, we require load
independent of the generation facility. To do otherwise would
be contrary to the definition of a customer-generator that only
includes nonutility owners and operators of alternative energy
systems.

44 Pa. B. 4181-4182 (2014) (emphasis added); R.R. 71a-72a. On May 19, 2016,
the Independent Regulatory Review Commission disapproved the PUC’s proposed
regulation for the stated reason that it exceeded the PUC’s authority under the
Alternative Energy Act.5 46 Pa. B. 2919 (2016).

5
The final regulation was originally submitted on March 22, 2016, and was disapproved on May
19, 2016. The order was delivered to the PUC on July 2, 2016.

5
 On August 20, 2014, Sunrise Energy initiated an action against West
Penn for refusing to pay for the electricity it received from Sunrise Energy and for
terminating the Electric Service Agreement one year before the expiration of the
five-year term of the agreement. In its amended complaint, Sunrise Energy
asserted the following five counts: Declaratory Judgment (Count I), Breach of
Contract (Count II), Quasi-Contract (Count III), Promissory Estoppel (Count IV),
and Direct Cause of Action for Alternative Energy Act Violations (Count V).
Sunrise Energy sought monetary damages for West Penn’s breach of contract or, if
the contract was void or voidable, equitable relief because West Penn induced
Sunrise Energy to pay for West Penn’s infrastructure improvements and because
West Penn was being unjustly enriched. It was using Sunrise Energy’s excess
electricity but not paying for it.
On December 15, 2014, West Penn filed preliminary objections
asserting that jurisdiction over the subject matter of the amended complaint rested
exclusively with the PUC. The trial court disagreed because the controversy did
not arise from, nor was it governed by, the Public Utility Code. The trial court
reasoned as follows:

Under the Public Utility Code, [66 Pa. C.S. §§101-3316,] the
PUC is vested with supervisory and regulatory power over all
public utilities doing business in the Commonwealth, 66 Pa.
C.S. §501(b). While [the trial court] acknowledges that “initial
jurisdiction over matters involving the reasonableness,
adequacy or sufficiency of a public utility’s service, facilities or
rates is vested in the PUC,” the controversy before the court is
not of that kind; it is whether West Penn’s net metering
termination, and refusal to pay Sunrise [Energy] net metering
proceeds, violates [the Alternative Energy Act]. Resolution of
this question depends on, and appears to be wholly dependent
on, whether Sunrise [Energy] is a customer-generator, as
defined under the [Alternative Energy] Act.
6
Trial Court op. at 5 (citations and footnote omitted and emphasis in original); R.R.
250a. The trial court concluded that it was competent to decide whether Sunrise
Energy was a customer-generator within the meaning of the Alternative Energy
Act and overruled West Penn’s preliminary objections. West Penn appealed to this
Court.6
Issues
On appeal,7 West Penn contends that the trial court erred.
Specifically, it argues that the PUC is vested with exclusive jurisdiction over Count
I, which seeks a declaratory judgment that Sunrise Energy is a customer-generator
within the meaning of the Alternative Energy Act. Alternatively, West Penn
argues that the PUC has primary jurisdiction over the remaining Counts, which
means that the trial court should refer the statutory construction question to the
PUC and hold the matter in abeyance until the PUC issues its ruling. The PUC has
filed an amicus curiae brief in support of West Penn’s position.
The Alternative Energy Portfolio Standards Act
Although Pennsylvania is rich in natural gas, coal and oil resources,
our General Assembly has made the policy decision to promote the development of

6
The trial court’s order overruling West Penn’s preliminary objection is interlocutory and, as
such, not appealable as of right. However, the trial court certified its order as one that “involves
a controlling question of law as to which there is substantial ground for difference of opinion[.]”
42 Pa. C.S. §702(b). See also PA. R.A.P. §1311(a) (stating “[a]n appeal may be taken by
permission under 42 Pa. C.S. §702(b) (interlocutory appeals by permission) from any
interlocutory order of a lower court or other governmental unit.”).
7
This Court’s review of a trial court’s order overruling preliminary objections to a complaint
determines whether the trial court erred as a matter of law. Pettko v. Pennsylvania American
Water Co., 39 A.3d 473, 477 n.7 (Pa. Cmwlth. 2012). Because it involves a pure question of
law, our standard of review is de novo and our scope of review is plenary. Thierfelder v. Wolfert,
52 A.3d 1251, 1261 (Pa. 2012).

7
alternative energy sources, such as solar, solar thermal, hydropower and
geothermal reserves. See Section 2 of the Alternative Energy Act, 73 P.S. §1648.2
(listing sources for the production of electricity that constitute “alternative energy
sources”).8 To that end, Section 3(a)(1) of the Alternative Energy Act mandates
that

electric energy sold by an electric distribution company or
electric generation supplier to retail electric customers in this
Commonwealth shall be comprised of electricity generated
from alternative energy sources and in the percentage amounts
as described under subsections (b) and (c).

73 P.S. §1648.3(a)(1) (emphasis added).
To kick-start the development of alternative energy in Pennsylvania,
the legislature tasked the PUC to “establish an alternative energy credits program
as needed to implement this act.”9 Section 3(e)(1) of the Alternative Energy Act,
72 P.S. §1648.3(e)(1). The legislature also tasked the PUC “to develop technical
and net metering interconnection rules for customer-generators ....” Section 5 of
the Alternative Energy Act, 73 P.S. §1648.5.10 Finally, the legislature tasked the
Department of Environmental Protection to establish, in cooperation with the
Department of Labor and Industry, “reasonable health and safety standards” for

8
This Court has explained that the “purpose of the Alternative Energy Act is to encourage
growth and investment in renewable sources of energy.” Dauphin County Industrial
Development Authority v. Pennsylvania Public Utility Commission, 123 A.3d 1124, 1131 (Pa.
Cmwlth. 2015), appeal denied, 140 A.3d 14 (Pa. 2016).
9
Section 3(e)(2) of the Alternative Energy Act states that the PUC will approve an independent
entity to serve as “alternative energy credits program administrator,” with the “powers and duties
assigned by [PUC] regulations.” 73 P.S. §1648.3(e)(2).
10
The legislature did not specify that these “rules” were to be produced in the form of a
regulation, as it did specify for the alternative energy credits program, at least indirectly. 73 P.S.
§1648.3(e)(2).

8
alternative energy facilities. Section 6 of the Alternative Energy Act, 73 P.S.
§1648.6.
Section 2 of the Alternative Energy Act defines a customer-generator
as:
A nonutility owner or operator of a net metered distributed
generation system with a nameplate capacity of not greater
than 50 kilowatts if installed at a residential service or not
larger than 3,000 kilowatts at other customer service locations,
except for customers whose systems are above three megawatts
and up to five megawatts who make their systems available to
operate in parallel with the electric utility during grid
emergencies as defined by the regional transmission
organization or where a microgrid is in place for the primary or
secondary purpose of maintaining critical infrastructure, such as
homeland security assignments, emergency services facilities,
hospitals, traffic signals, wastewater treatment plants or
telecommunications facilities, provided that technical rules for
operating generators interconnected with facilities of an electric
distribution company, electric cooperative or municipal electric
system have been promulgated by the Institute of Electrical and
Electronic Engineers and the Pennsylvania Public Utility
Commission.

73 P.S. §1648.2 (emphasis added). Section 5 of the Alternative Energy Act
requires utilities to purchase the electricity generated by a customer-generator at
the full retail price. It states in full:

Excess generation from net-metered customer-generators shall
receive full retail value for all energy produced on an annual
basis. The [PUC] shall develop technical and net metering
interconnection rules for customer-generators intending to
operate renewable onsite generators in parallel with the
electric utility grid, consistent with rules defined in other states
within the service region of the regional transmission
organization that manages the transmission system in any part
of this Commonwealth. The [PUC] shall convene a stakeholder

9
 process to develop Statewide technical and net metering rules
for customer-generators. The [PUC] shall develop these rules
within nine months of the effective date of this act.

73 P.S. §1648.5 (emphasis added). The PUC has promulgated a regulation on
“technical and net metering interconnection rules” for customer-generators that
“operate renewable onsite generators” that is set forth in Title 52 of the
Pennsylvania Code, Chapter 75, Subchapter B “Net Metering.” See 52 Pa. Code
§§75.11 – 75.15. The regulation states, in relevant part, as follows:

(a) EDCs [Electric Distribution Companies] shall offer net
metering to customer-generators that generate electricity on the
customer-generator’s side of the meter using Tier I or Tier II
alternative energy sources, on a first come, first served basis.
EGSs [Electric Generation Suppliers] may offer net metering to
customer-generators, on a first come, first served basis, under
the terms and conditions as are set forth in agreements between
EGSs and customer-generators taking service from EGSs.

52 Pa. Code §75.13(a).11
Absent from the Alternative Energy Act is an enforcement provision.
The legislature did not create a statutory remedy, for example, for the customer-
generator who is rebuffed by an EDC or EGS. The legislature did not authorize
the PUC to impose sanctions upon utilities that refuse to comply with the terms of
the statute. The Alternative Energy Act authorizes the PUC to establish “technical
and net metering interconnection rules,” but it does not give the PUC power to act
beyond this narrow authorization. See Section 5 of the Alternative Energy Act, 73
P.S. §1648.5. The statute does not authorize the PUC to conduct hearings to

11
See n.3, 4, supra, for definitions of an electric distribution company and electric generation
supplier.

10
resolve disputes between two private parties engaged in a net metering
arrangement. It is silent on these matters.
Definition of Customer-Generator
The amended complaint asserts that Sunrise Energy conforms
precisely to the statutory definition of customer-generator set forth in Section 2 of
the Alternative Energy Act. 73 P.S. §1648.2.12 Sunrise Energy’s “net metered
distributed generation system” has “a nameplate capacity ... not larger than 3,000
kilowatts.” Amended Complaint, ¶15. Sunrise Energy observes that the only
statutory limitation upon a non-residential service consumer seeking to qualify as a
“customer-generator” is upon its capacity to generate electricity. Id.
West Penn responds that Sunrise Energy has taken the word “net” out
of “net metering.” It argues that unless a customer-generator purchases electricity
for purposes beyond what is needed to generate alternative electricity, it is not a
true customer-generator under the Alternative Energy Act. To this, Sunrise Energy
responds that West Penn’s legal argument depends upon facts not pled in the
amended complaint. It also responds that West Penn’s understanding of what
constitutes a true customer-generator adds language to the existing statutory
definition. Section 2 of the Alternative Energy Act limits the amount of electricity

12
The PUC’s proposal to amend this regulation will require the customer-generator to use
electricity for “a purpose other than to support the organization, maintenance or administration of
the alternative energy.” See 44 Pa. B. 4182 (2014). The amendment does not specify the
minimum amount that must be used for this other purpose.
Sunrise Energy consumes a relatively small amount of electricity compared to the amount
it generates. See Amended Complaint, Ex. 4; R.R. 38a. West Penn argues that Sunrise Energy is
consuming electricity only for maintaining and administering the net-metering system. West
Penn Brief at 30. However, this factual averment does not appear in the Amended Complaint.
In considering West Penn’s preliminary objections, we are bound by the facts as pled.

11
a customer-generator may produce for sale, but it does not require the customer-
generator to purchase a minimum amount of electricity. Likewise, the statute does
not specify how the customer-generator must use the electricity that it purchases
from the EDC or EGS.
We need not decide the merits of these arguments. The only question
is whether these statutory construction arguments must, in the first instance, be
heard by the PUC.
Jurisdiction
Our Supreme Court has instructed that where the General Assembly
has

seen fit to enact a pervasive regulatory scheme and to establish
a governmental agency possessing expertise and broad
regulatory and remedial powers to administer that statutory
scheme, a court should be reluctant to interfere in those matters
and disputes which were intended by the Legislature to be
considered, at least initially, by the administrative agency. Full
utilization of the expertise derived from the development of
various administrative bodies would be frustrated by
indiscriminate judicial intrusions into matters within the various
agencies’ respective domains.

Feingold v. Bell of Pennsylvania, 383 A.2d 791, 793 (Pa. 1977). Our Supreme
Court also noted that “[a]s with all legal rules,” this one is not inflexible. Id. A
court may exercise jurisdiction where the administrative remedy is not adequate.
Id. “The mere existence of a remedy does not dispose of the question of its
adequacy; the administrative remedy must be ‘adequate and complete.’” Id. at 794
(citation omitted). Where a statutory procedure would be of “little, if any, utility,”
it may be bypassed. Borough of Green Tree v. Board of Property Assessments,
328 A.2d 819, 825 (Pa. 1974). Accordingly, a challenge to the constitutionality of

12
a taxing statute may be initiated in equity, notwithstanding the statutory remedy for
challenging a tax assessment. Id. This is because where the validity of the statute
is concerned, “less need exists for the agency involved to throw light on the issue
through exercise of its specialized fact-finding function or application of its
administrative expertise.” Id.
In Feingold, the Supreme Court considered the question of whether a
civil action seeking breach of contract damages and equitable relief could proceed
in a court of common pleas or, rather, should be heard by the PUC. In considering
this question, the Supreme Court explained as follows:

It is relevant to the case now before us that the statutory array
of PUC remedial and enforcement powers does not include the
power to award damages to a private litigant for breach of
contract by a public utility. Nor can we find an express grant of
power from which the power to award such damages can be
fairly implied. Thus, it can be concluded that the Legislature
did not intend for the PUC to have such a power.

Feingold, 383 A.2d at 794. The Supreme Court noted that had the plaintiff “sought
only equitable relief, in the form of an injunction, the lower court’s dismissal
would have found more support in prior case law.” Id. at 795, n.5.
In sum, an administrative agency has exclusive jurisdiction where the
legislature has given it the power to adjudicate on a particular subject matter.
Stated otherwise, a statutory remedy “must be strictly pursued and such remedy is
exclusive” ... “unless the jurisdiction of the courts is preserved thereby.” Lashe v.
Northern York County School District, 417 A.2d 260, 263-64 (Pa. Cmwlth 1980).
The doctrine of exclusive jurisdiction requires that

[i]n all cases where a remedy is provided, or duty enjoined, or
anything directed to be done by an act or acts of assembly of

13
 this commonwealth, [t]he directions of the said acts shall be
strictly pursued.

Borough of Green Tree, 328 A.2d at 823. Where a court concludes that an agency
has exclusive jurisdiction, it will dismiss the action.
Sometimes a statutory remedy does not involve a state or local agency
but, rather, a court; sometimes the statutory remedy is not exclusive. See, e.g.,
Hoover v. Bucks County Tax Claim Bureau, 405 A.2d 562 (Pa. Cmwlth. 1979)
(holding that the statutory procedure for challenging the adequacy of a tax sale
notice before a court of common pleas is not exclusive of an equitable remedy).
More typically, however, the statutory remedy does involve an administrative
agency, as in Feingold. Where a court concludes that it has “concurrent statutory
jurisdiction over a dispute but that an issue ... is within the primary jurisdiction of
an agency, the court will defer any decision in the dispute ... until the agency has
addressed the issue that is within its primary jurisdiction.” 2 Richard J. Pierce, Jr.,
ADMINISTRATIVE LAW TREATISE §14.1 at 1161 (5th ed. 2010) (emphasis added).
The doctrine of primary jurisdiction is comparable to exhaustion of administrative
remedies; both doctrines allocate adjudicatory responsibility between courts and
agencies. Id. at 1162. In Pettko v. Pennsylvania American Water Co., 39 A.3d
473, 479 (Pa. Cmwlth. 2012), we explained as follows:

[T]he doctrine of primary jurisdiction permits the bifurcation of
a plaintiff’s claim, whereby a trial court, faced with a claim
requiring the resolution of an issue that is within the expertise
of an administrative agency, will first cede the analysis of the
issue or issues to that agency. Once the agency resolves the
particular issue or issues over which it has primary jurisdiction,
the trial court may proceed, if necessary, to apply the agency’s
decision to the dispute remaining before the trial court.

Id.
14
 Whether a matter lies within the exclusive jurisdiction or the primary
jurisdiction of an agency is for the legislature to direct by statute. Borough of
Green Tree, 328 A.2d at 823. The overarching principle of either doctrine is
deference to the will of the legislature in its establishment of a statutory remedy.
I.
West Penn contends that the PUC has exclusive jurisdiction over the
question of whether Sunrise Energy is a customer-generator within the meaning of
the Alternative Energy Act. The trial court held that statutory construction is a
matter for the courts. Further, unlike the pervasive regulatory scheme set up in the
Public Utility Code, 66 Pa. C.S. §§101-3316, the Alternative Energy Act confers
no authority upon the PUC to adjudicate matters arising under the Alternative
Energy Act. We agree with the trial court.
Even where a statute provides a remedy for its enforcement, as the
Public Utility Code does on matters relating to the reasonableness of a utility’s
service and rates, Feingold teaches that the statutory remedy must be adequate and
complete. In Feingold, the statutory remedy in the Public Utility Code was held
not to be adequate because the plaintiff sought damages for breach of contract, and
contract damages cannot be awarded by an administrative agency. Feingold, 383
A.2d at 794. Nor is the statutory remedy adequate where the constitutionality of
the governing statute is the issue. Borough of Green Tree, 328 A.2d at 825.
Here, there is no statutory remedy in the Alternative Energy Act
whose “adequacy” is in doubt and, accordingly, this is not a close case. The
Alternative Energy Act does not vest the PUC with “an array of [ ] remedial and
enforcement powers.” Feingold, 383 A.2d at 794. The PUC does not have the
power to adjudicate the subject matter of the amended complaint, i.e., whether

15
Sunrise Energy meets the statutory definition of “customer-generator.”
Accordingly, we reject West Penn’s claim that the PUC has exclusive jurisdiction
to decide the merits of Count I of the amended complaint. Simply, there is no
statutory remedy provided in the Alternative Energy Act for resolving disputes
arising thereunder. The trial court correctly rejected West Penn’s contention that
the PUC has exclusive jurisdiction to decide whether Sunrise Energy is a
customer-generator as defined in Section 2 of the Alternative Energy Act.
II.
Alternatively, West Penn argues that the PUC has primary jurisdiction
over the remaining Counts in the amended complaint. It argues that the trial court
should allow the PUC, in the first instance, to decide the statutory construction
question. After it does so, the trial court may then, if necessary, conduct a hearing
on Sunrise Energy’s breach of contract and quasi-contract claims.13 The PUC,
which has filed an amicus curiae brief, contends that allowing a court of common
pleas to construe the meaning of “customer-generator” will lead to different results
in different counties and thereby balkanize the electric service industry in
Pennsylvania. In support of the argument that the PUC should decide whether
Sunrise Energy is a customer-generator, West Penn and the PUC direct the Court
to Morrow v. Bell Telephone Company of Pennsylvania, 479 A.2d 548 (Pa. Super.
1984).
In Morrow, a customer of Bell Telephone of Pennsylvania filed a civil
action in a court of common pleas alleging that it was being overcharged for

13
Should West Penn prevail on the statutory construction issue, this may make the Electric
Service Agreement void or voidable. This would leave Sunrise Energy’s quasi-contract claims
and promissory estoppel claims for disposition.

16
certain services, such as fees for restoring suspended service. Bell Telephone filed
preliminary objections, asserting that the trial court lacked subject matter
jurisdiction because all of the charges challenged by the plaintiff had been
approved by the PUC and set forth in Bell Telephone’s tariff.14 Indeed, it was
mandatory that Bell Telephone impose the specific charges on the plaintiff unless
and until the PUC approved a new tariff.
The trial court agreed and dismissed the action. On appeal, the
Superior Court affirmed. It explained:

[The customer’s] equity action was a challenge to [the
telephone company’s] rates and to its service practices. Rates
and practices regarding deposits are peculiarly and exclusively
within the jurisdiction and expertise of the [PUC]. Therefore,
they must be addressed by that body. Although [the
customer’s] complaint contains averments of breach of contract,
these averments are but a cover disguising the real thrust of his
complaint, which is to challenge the adequacy and propriety of
[the telephone company’s] rates and service practices.

Morrow, 479 A.2d at 551 (footnote omitted) (emphasis added).
Morrow is inapposite. It involved a subject, i.e., the utility’s schedule
of approval rates, or “tariff,” on which the legislature has expressly conferred
jurisdiction in the PUC. See Section 1308(b) of the Public Utility Code

14
A utility tariff has been defined by this Court as follows:
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.
PPL Electric Utilities Corporation v. Pennsylvania Public Utility Commission, 912 A.2d 386,
402 (Pa. Cmwlth. 2006) (emphasis added).

17
(establishing a statutory remedy for challenging an approved tariff or rate).15 This
is not a utility rate case.
West Penn tries to make Sunrise Energy’s action a rate case by noting
that the Net Energy Metering Rider is incorporated into the Electric Service
Agreement as part of West Penn’s retail electric Tariff No. 39 on file with the
PUC. R.R. 167a (West Penn Brief in support of Preliminary Objections at 4, n.3).
The key “billing program” term that is set forth in the Net Energy Metering Rider
states as follows:

The customer-generator will receive a credit for each kilowatt-
hour received by [West Penn] up to the total amount of
electricity delivered to the Customer during the billing period at
the full retail rate, consistent with [PUC] regulations. On an
annual basis, [West Penn] will compensate the customer-
generator for kilowatt-hours received from the customer-
generator in excess of the kilowatt hours delivered by [West

15
It states, in relevant part, as follows:
Hearing and suspension of rate change.--Whenever there is filed with the [PUC]
by any public utility any tariff stating a new rate, the [PUC] may, either upon
complaint or upon its own motion, upon reasonable notice, enter upon a hearing
concerning the lawfulness of such rate, and pending such hearing and the decision
thereon, the [PUC], upon filing with such tariff and delivering to the public utility
affected thereby a statement in writing of its reasons therefor, may, at any time
before it becomes effective, suspend the operation of such rate for a period not
longer than six months from the time such rate would otherwise become effective,
and an additional period of not more than three months pending such decision.
The rate in force when the tariff stating the new rate was filed shall continue in
force during the period of suspension, unless the [PUC] shall establish a
temporary rate as authorized in section 1310 (relating to temporary rates).
66 Pa. C.S. §1308(b) (emphasis added). Section 1308(b) of the Public Utility Code confers
exclusive jurisdiction in the PUC to conduct hearings on a utility’s new rate upon the filing of a
complaint by a customer of the utility. There is no analog to Section 1308(b) in the Alternative
Energy Act, which is silent on where, or how, a person claiming a violation of the Alternative
Energy Act should proceed.

18
 Penn] to the customer-generator during the preceding year at
the full retail value for all energy produced consistent with
[PUC] regulations. The customer-generator is responsible for
the customer charge, demand charge and other applicable
charges under the applicable Rate Schedule.

R.R. 41a.16 That this rider language is part of West Penn’s tariff does not make
this a rate case.
The word “tariff” does not appear in the Alternative Energy Act.
Nevertheless, the PUC’s regulation provides that “[a]n EDC shall file a tariff with
the [PUC] that provides for net metering consistent with this chapter.” 52 Pa.
Code §75.13(b). However, this so-called net metering tariff is the obverse of a true
tariff. A tariff sets what the utility will collect for its service. PPL Electric
Utilities Corporation v. Pennsylvania Public Utility Commission, 912 A.2d 386,
402 (Pa. Cmwlth. 2006). The net metering tariff sets forth what the utility will pay
for electricity. Further, the amount that the utility will pay for the customer-
generator’s excess electricity has been established by the legislature in Section 5 of
the Alternative Energy Act, i.e., the “full retail value.” 73 P.S. §1648.5.
A true tariff was at issue in Morrow, i.e., a schedule of the charges the
utility collected in exchange for providing service. The PUC approved those

16
The Electric Service Agreement also states in relevant part:
[West Penn] and [Sunrise Energy] mutually agree, with the intent to be legally
bound, as follows:
1. [West Penn’s] tariff rules and regulations (“Rules and
Regulations”) as they now exist, or may be amended from time to
time, are incorporated into and made part of this Agreement. The
Rules and Regulations are in addition to and supplement this
Agreement. Therefore, they shall be interpreted and read to be
consistent with the paragraphs of this Agreement.
R.R. 27a.

19
charges after determining that they met the standards in the Public Utility Code.
66 Pa. C.S. §1301 (stating that every “rate made, demanded, or received by any
public utility, or by any two or more public utilities jointly, shall be just and
reasonable, and in conformity with regulations or orders of the commission.”)
(emphasis added). To make this determination, the PUC had to bring its expertise
to bear on the matter and exercise discretion.
By contrast, West Penn’s Net Energy Metering Rider, on file with the
PUC, simply recites what is stated in Section 5 of the Alternative Energy Act. The
PUC did not have to exercise any discretion with respect to this “tariff.” Indeed,
instead of calling it a “tariff,” the PUC could have just as easily called it a “rule,”
which is the term actually used by the legislature in the Alternative Energy Act.17
Regardless, West Penn’s “tariff” is outside the scope of this litigation, which will
determine, simply, whether Sunrise Energy is a customer-generator eligible for net
metering. Whatever the litigation’s outcome, it will not require a change to a
single word in West Penn’s tariff or its “net energy metering rider.”
The PUC claims authority to adjudicate the meaning of “customer-
generator” by reason of the General Rules of Administrative Practice and
Procedure (GRAPP), which authorizes agencies to hear petitions for declaratory
orders. The pertinent rule states:

§35.19. Petitions for declaratory orders.

Petitions for the issuance, in the discretion of an agency, of a
declaratory order to terminate a controversy or remove
uncertainty, shall state clearly and concisely the controversy or

17
The legislature has established the amount the utility must pay to compensate customer-
generators for their excess electricity. Although the PUC requires the utility to file a net energy
metering rider with the PUC, this filing requirement is redundant of the statute and unnecessary.

20
 uncertainty which is the subject of the petition, shall cite the
statutory provision or other authority involved, shall include a
complete statement of the facts and grounds prompting the
petition, together with a full disclosure of the interest of the
petitioner.

1 Pa. Code §35.19. The PUC argues that if it is not allowed to issue a declaratory
order in this case, and in other similar cases, the electric service industry in
Pennsylvania will be beset by inconsistencies. The PUC further argues that it will
not be able to offer its point of view in such cases because it cannot participate as
an amicus curiae. The PUC explains that, as the putative adjudicator of disputes
arising from the Alternative Energy Act, it must be neutral on the statutory
construction question.
First, an agency cannot confer authority upon itself by regulation.
Any power exercised by an agency must be conferred by the legislature in express
terms. Aetna Casualty and Surety Company v. Commonwealth of Pennsylvania,
Insurance Department, 638 A.2d 194, 200 (Pa. 1994) (stating that an agency can
only exercise powers “conferred upon it by the Legislature in clear and
unmistakable language”) (citation omitted). The petition for declaratory order
authorized by GRAPP assumes an underlying statutory basis for the agency’s
exercise of an adjudicatory function. The Alternative Energy Act directed the PUC
to set technical net metering interconnection rules. To the extent the PUC has
adjudicatory authority, it is, at most, authority to clarify the technicalities of those
rules. Cf. ARIPPA v. Pennsylvania Public Utility Commission, 966 A.2d 1204 (Pa.

21
Cmwlth. 2009). The PUC does not enjoy a roving mandate to adjudicate on the
construction of the Alternative Energy Act.18
Second, we reject the PUC’s argument that it may not participate in a
common pleas court proceeding as amicus curiae because, as an adjudicator, it
must remain neutral on the meaning of customer-generator. This is disingenuous.
The PUC has already gone on record as stating that it believes the Alternative
Energy Act implicitly requires customer-generators to have a native retail load. 44
Pa. B. 4179 (2014); R.R. 62a-91a.
The PUC argues that allowing the Court of Common Pleas of
Washington County to construe the definition of customer-generator in the
Alternative Energy Act will balkanize our electric service industry. This assumes
that Pennsylvania’s courts of common pleas will be unpersuaded by the ruling
from the Court of Common Pleas of Washington County. It also assumes that
neither party will appeal. An appeal will establish a single ruling of statewide
effect. Development in the law, whether in common law, constitutional law or
statutory law, often begins with a single holding by a court with original
jurisdiction. See, e.g., Mayle v. Pennsylvania Department of Highways, 388 A.2d
709 (Pa. 1978) (abolishing sovereign immunity in a case that began with a

18
As noted, the PUC has a duty to set “technical interconnection rules,” but the legislature did
not specify that these “rules” be established by a regulation as it did with respect to the
alternative energy credits program. Compare Section 3(e)(2) and Section 5 of the Alternative
Energy Act, 73 P.S. §§1648.3(e)(2), 1648.5.
The PUC’s existing regulation defines “customer-generator” in language that is identical to
that used by the legislature in the Alternative Energy Act. Compare 52 Pa. Code §75.1 and
Section 2 of the Alternative Energy Act, 73 P.S. §1648.2. The PUC’s proposed amendment will
add the words “retail electric customer” to the regulation’s definition of “customer-generator.”
44 Pa. B. 4179 (2014), Annex A. The PUC describes generators without a sufficient retail load
as “merchant generators,” which is a term that does not appear in the Alternative Energy Act.

22
complaint in trespass filed in Commonwealth Court’s original jurisdiction). In
short, the PUC’s posited parade of horribles to follow from having a judge,
commissioned pursuant to Article V of the Pennsylvania Constitution, decide the
present statutory construction question is not very persuasive.
In any case, the PUC’s proffered policy arguments and bleak
predictions are best addressed to the General Assembly, which has the power to
amend the Alternative Energy Act to include a statutory remedy. The General
Assembly may also, if it deems it appropriate, amend the definition of customer-
generator. Indeed, Section 7 of the Alternative Energy Act contemplates that the
PUC and the Department of Environmental Protection will file an annual report
with “the chairman and minority chairman of the Environmental Resources and
Energy Committee of the Senate” and their counterparts in the House of
Representatives. 73 P.S. §1648.7(c). That report “shall include at a minimum ...
[r]ecommendations for program improvements.” Id.
The Alternative Energy Act is not part of the Public Utility Code. The
legislature has authorized the PUC to develop “technical and net metering
interconnection rules.” See Section 5 of the Alternative Energy Act, 73 P.S.
§1648.5. This limited authority does not give the PUC jurisdiction to decide
eligibility for net metering.19 Eligibility has been fully established by the
legislature in the Alternative Energy Act.

19
In ARIPPA v. Pennsylvania Public Utility Commission, 966 A.2d 1204, 1207 (Pa. Cmwlth.
2009), two electric distribution companies requested a declaratory order from the PUC that “the
electric distribution company owned the alternative energy credits.” The intervenor, ARIPPA,
appealed the PUC’s adjudication asserting, inter alia, that the PUC lacked subject matter
jurisdiction. This Court rejected this argument, noting, inter alia, that ARIPPA did not raise this
argument until its appeal to this Court. This Court also held that the question at issue in ARIPPA
dealt with the ownership and transfer of energy credits as set forth in the PUC’s regulation. It
(Footnote continued on the next page . . .)
23
 Not every case that involves a public utility must be presented, first, to
the PUC. Such a rule would be contrary to our Supreme Court’s directive in
DeFrancesco v. Western Pennsylvania Water Company, 453 A.2d 595 (Pa. 1982).
In DeFrancesco, two property owners brought negligence claims
against a water company for not supplying water pressure sufficient to allow
firefighters to put out the fire that destroyed their properties. The water company
asserted that the claim belonged before the PUC, and the Superior Court agreed.
Our Supreme Court reversed, explaining:

The controversy now before us, however, is not one in which
the general reasonableness, adequacy or sufficiency of a public
utility’s service is drawn into question. Resolution of
appellant’s claims depended upon no rule or regulation
predicated on the peculiar expertise of the PUC, no agency
policy, no question of service or facilities owed the general
public, and no particular standard of safety or convenience
articulated by the PUC.

***
Resolving the essential question of whether the utility failed to
perform its mandated duties requires no recondite knowledge
or experience and falls within the scope of the ordinary
business of our courts.

Id. at 597 (footnote omitted) (emphasis added). The Supreme Court concluded that
the PUC’s regulatory powers did not strip a trial court of jurisdiction simply
because the common law action may involve a regulated public utility.

(continued . . .)
required construction of the PUC’s regulation on energy credits, not a construction of the
Alternative Energy Act. The instant case has nothing to do with the PUC’s alternative energy
credit program. Likewise, the PUC’s technical interconnection rules for customer-generators are
not relevant to West Penn’s defense.

24
 Whether Sunrise Energy is a customer-generator must be resolved by
construing the language of the Alternative Energy Act, which expressly defines
“customer-generator.” Our courts of common pleas construe statutes every day.
Accordingly, we have explained that:

[C]ourts should not develop a “dependency” on “agencies
whenever a controversy remotely involves some issue falling
arguably within the domain of the agency’s ‘expertise,’”
because expertise is not a talisman dissolving a court’s
jurisdiction, nor should accommodation to the administrative
function be an abdication of judicial responsibility.

County of Erie v. Verizon North, Inc., 879 A.2d 357, 363 (Pa. Cmwlth. 2005)
(quoting Elkin v. Bell Telephone Company, 420 A.2d 371, 377 (Pa. 1980))
(emphasis added).20 A party to a civil action cannot compel a trial court to
relinquish its jurisdiction to an administrative agency just because one litigant
prefers the agency to decide the issue.
Conclusion
The trial court did not err by refusing to cede jurisdiction to the PUC.
Statutory construction is a responsibility of the judiciary, not the executive branch.
West Penn’s argument that the PUC has exclusive or primary jurisdiction over the
Amended Complaint lacks a foundation in the Alternative Energy Act, which does

20
In Elkin, after conducting an evidentiary hearing, the PUC dismissed Elkin’s complaint that
Bell Telephone had failed to furnish “reasonable, rapid and efficient service.” 420 A.2d at 373.
Elkin did not appeal this adjudication but filed a tort claim in common pleas court. Bell
Telephone argued that Elkin’s tort claim constituted a collateral attack on the PUC’s
adjudication, and the Supreme Court agreed. Nevertheless, our Supreme Court reiterated that
administrative expertise is “no talisman dissolving a court’s jurisdiction.” Id. at 376. Elkin is
inapposite to this case. Elkin arose under the Public Utility Code, and it concerned adequacy of
utility service, which, as acknowledged here by the trial court, is a subject matter committed to
the PUC.

25
does not confer enforcement powers upon any state agency. For these reasons, the
order of the trial court is affirmed and the matter is remanded for further
proceedings consistent with this opinion.

______________________________________
MARY HANNAH LEAVITT, President Judge

26
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sunrise Energy, LLC :
:
v. : No. 1282 C.D. 2015
:
FirstEnergy Corp. and West Penn :
Power Company, :
Appellants :

ORDER

AND NOW, this 14th day of October, 2016, the order of the
Washington County Court of Common Pleas dated June 1, 2015, in the above-
captioned matter is AFFIRMED. Accordingly, the matter is REMANDED for
further proceedings in accordance with the attached opinion.
Jurisdiction relinquished.

______________________________________
MARY HANNAH LEAVITT, President Judge
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sunrise Energy, LLC :
:
v. : No. 1282 C.D. 2015
: Argued: June 8, 2016
FirstEnergy Corp. and West Penn :
Power Company, :
Appellants :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge

DISSENTING OPINION
BY JUDGE COHN JUBELIRER FILED: October 14, 2016

I respectfully disagree with the majority that answering the questions of
what is a “customer-generator” and what constitutes “net metering” under the
Alternative Energy Portfolio Standards Act (AEPS Act),1 as implemented under a
tariff of a public utility, is not within the jurisdiction of the Public Utility
Commission (PUC). Although the majority justifies its exclusion of the PUC from

1
Act of November 30, 2004, P.L. 1672, as amended, 73 P.S. §§ 1648.1−1648.8. “The
purpose of the [AEPS] Act is to encourage growth and investment in renewable sources of
energy. The [AEPS] Act achieves this goal by requiring that ‘[e]xcess generation from net-
metered customer-generators shall receive full retail value for all energy produced on an annual
basis.’ 73 P.S. § 1648.5 (emphasis added).” Dauphin Cnty. Indus. Dev. Auth. v. Pa. Pub. Util.
Comm’n, 123 A.3d 1124 (Pa. Cmwlth. 2015), appeal denied, 140 A.3d 14 (Pa. 2016).
this determination on the basis that “[s]tatutory construction is a responsibility of
the judiciary,” (Maj. Op. at 25), all administrative agencies operate within a
statutory framework. It is beyond purview that the PUC is empowered with
jurisdiction over the supervision and regulation of all public utilities and their
provision of services in the Commonwealth, the restructuring of the electric utility
industry, matters related to public utility tariffs, and provisions of the AEPS Act,
and is considered to have specialized expertise to which the courts are to defer
when reviewing decisions within its expertise. See, e.g., ARIPPA v. Pa. Pub. Util.
Comm’n, 966 A.2d 1204, 1211-13 (Pa. Cmwlth. 2009) (finding that the PUC has
jurisdiction, and thus authority, to determine who owns alternative energy credits
under the AEPS Act, “a process that implicates the particular expertise of the
[PUC,]” and that such determinations are given great deference); Pa. Power Co. v.
Pa. Pub. Util. Comm’n, 932 A.2d 300, 307 (Pa. Cmwlth. 2007) (stating that the
PUC’s “interpretation of the AEPS Act is entitled to great deference and will not
be reversed unless clearly erroneous”); Cnty. of Erie v. Verizon North, Inc., 879
A.2d 357, 364 (Pa. Cmwlth. 2005) (stating that matters related to public utility
tariffs are peculiarly within the expertise of the PUC and, as such, are outside the
original jurisdiction of the courts).
The majority’s critical mistake is evaluating the AEPS Act in a vacuum
instead of in pari materia with the relevant portions of the Public Utility Code2 and
the Electric Generation Customer Choice and Competition Act (Competition Act),3
all of which govern the provision of safe, reliable, and efficient electrical service.
The determination of whether a generation facility qualifies as a “customer-

2
Act of July 1, 1978, P.L. 598, 66 Pa. C.S. §§ 101-3316.
3
Act of December 3, 1996, P.L. 802, 66 Pa. C.S. §§ 2801-2815.

RCJ-2
generator,” thus entitling it to the special compensation provisions of “net-
metering,” has a significant impact on the provision of electric service, and is
intertwined with the interpretation and application of West Penn Power Company’s
(West Penn) tariff and its provision of services to its other customers. I believe
that is why the Legislature explicitly gave the PUC “the power to carry out the
responsibilities delineated within th[e AEPS A]ct,” including specific authority to
develop regulations on net metering for customer-generators. Sections 5 and 7 of
the AEPS Act, 73 P.S. §§ 1648.5, 1648.7. Importantly, the interpretation of these
Acts must be uniform and consistent throughout the Commonwealth without
regard to the location of a generation facility. Because it is clear to me that the
PUC has jurisdiction over this determination, I must respectfully dissent.
The Pennsylvania Supreme Court has instructed that “[t]o accommodate the
role of the court with that of the agency, the doctrine of primary jurisdiction (or
primary exclusive jurisdiction) has been developed.” Elkin v. Bell Telephone
Company, 420 A.2d 371, 376 (Pa. 1980). This doctrine “creates a workable
relationship between the courts and administrative agencies wherein, in appropriate
circumstances, the courts can have the benefit of the agency’s views on issues
within the agency’s competence.” Id. (citing Feingold v. Bell of Pennsylvania, 383
A.2d 791, 798-99 (Pa. 1977) (Pomeroy, J., dissenting)). Importantly for our
purposes, this doctrine “requires judicial abstention in cases where protection of
the integrity of a regulatory scheme dictates preliminary resort to the agency which
administers the scheme.” Id. (emphasis added) (quoting Weston v. Reading
Railroad Co., 282 A.2d 714 (Pa. 1977) (quoting United States v. Western Pacific
Railroad Co., 352 U.S. 59, 68 (1956))). Our Supreme Court recognized that the
courts must not be “too hasty in referring a matter to an agency,” and must

RCJ-3
evaluate whether doing so would be “a true fostering of the purposes of the
doctrine . . . .” Id. at 377. Thus, we are to refer a matter to an agency where:

the subject matter is within an agency's jurisdiction and where it is a
complex matter requiring special competence, with which the judge or
jury would not or could not be familiar . . . . Also weighing in the
consideration should be the need for uniformity and consistency in
agency policy and the legislative intent.

Id. at 376-77.
This case meets the Elkin requirements and requires judicial abstention in
favor of the PUC with regard to these questions. The PUC is the agency that
“administers the [regulatory] scheme” under the AEPS Act. The Legislature
expressly conferred upon the PUC “the power to carry out the responsibilities
delineated within th[e AEPS A]ct” and to “monitor the performance of all aspects
of th[e] act,” in cooperation with the Department of Environmental Protection
(DEP). 73 P.S. §§ 1648.5, 1648.7. In 17 instances, the AEPS Act references the
PUC and confers upon it specific duties and responsibilities to implement the Act,
such as the authority to develop regulations on net metering interconnection
standards for customer-generator facilities. See, e.g., Sections 2, 3, 5, and 7 of the
AEPS Act, 73 P.S. §§ 1648.2, 1648.3, 1648.5, 1648.7.4 In compliance with its

4
See, e.g., 73 P.S. § 1648.2 (definition of “customer-generator” requires that the PUC
promulgate technical rules for operating generators interconnected with facilities of an electric
distribution company (EDC); definition of “force majeure” requires, inter alia, that the PUC
shall determine if alternative energy resources are reasonably available in the marketplace in
sufficient quantities for the electric distribution companies and electric generation suppliers to
meet their obligations under the Act); 73 P.S. § 1648.3(e)(1)-(3), (11) (requiring that the PUC
establish an alternative energy credits program, as needed, to implement the Act, and approve an
independent entity to serve as the alternative energy credits program administrator; providing
that the PUC will approve qualifying meters); 73 P.S. § 1648.7 (requiring that the PUC and the
DEP conduct an ongoing alternative energy resources planning assessment for the
(Continued…)
RCJ-4
mandate, the PUC promulgated those regulations. See AEPS Act Regulations
codified at Title 52 (Public Utilities), Part I (Public Utility Commission), Subpart
C (Fixed Service Utilities), 52 Pa. Code §§ 75.1-75.70. The AEPS Act regulations
govern disputes concerning the application of the technical and net metering
interconnection rules, promulgated by the PUC, which apply to “customer-
generators.” 52 Pa. Code §§ 75.31, 75.51. Section 75.51 provides, in pertinent
part, as follows:

(a) A party shall attempt to resolve all disputes regarding
interconnection[5] as provided in this chapter promptly, equitably, and
in a good faith manner.

(b) When a dispute arises, a party may seek immediate resolution
through complaint procedures available through the [PUC], or an
alternative dispute resolution process approved by the [PUC], by
providing written notice to the [PUC] and the other party stating the
issues in dispute.

***

52 Pa. Code § 75.51(a)-(b) (emphasis added). The above regulation, promulgated
in accordance with the Legislature’s express grant of power to do so, directs an
obviously aggrieved “customer-generator” “who is rebuffed by” an electric
generation company (EDC) or electric generation supplier (EGS) to use the

Commonwealth, which will, at a minimum, identify current and operating alternative energy
facilities, the potential to add future alternative energy generating capacity and the conditions of
the alternative energy marketplace).
5
The issue in this case involves an “interconnection” dispute because Sunrise Energy,
LLC is an operating generator facility that is interconnected with West Penn’s distribution
facility, and is thus, purportedly, a “customer-generator” subject to the technical and net
metering interconnection standards developed by the PUC.

RCJ-5
complaint procedures available through the PUC, as set forth in Section 701 of the
Public Utility Code, 66 Pa. C.S. § 701.6
Moreover, the Public Utility Code and the AEPS Act both involve the
regulation of EDCs, EGSs, and the sale of electric energy to retail customers in the
Commonwealth. The AEPS Act is replete with references to the Public Utility
Code, including 66 Pa. C.S. §§ 511, 1307, 2807, 2808, 2812, and 3315, and also
makes express use of certain definitions found within the Competition Act of the
Public Utility Code, 66 Pa. C.S. § 2803. See 73 P.S. §§ 1648.2, 1648.3. There is
no question that the PUC is the agency that “administers the [regulatory] scheme”
under the Public Utility Code. Although this may not be “a utility rate case,” (Maj.
Op. at 17-18.), the Competition Act requires EDCs, like West Penn, to purchase

6
Section 701 of the Public Utility Code provides, in pertinent part, as follows:

The [PUC], or any person, corporation, or municipal corporation having an
interest in the subject matter, or any public utility concerned, may complain in
writing, setting forth any act or thing done or omitted to be done by any public
utility in violation, or claimed violation, of any law which the [PUC] has
jurisdiction to administer, or of any regulation or order of the [PUC]. Any
public utility, or other person, or corporation likewise may complain of any
regulation or order of the [PUC], which the complainant is or has been required
by the [PUC] to observe or carry into effect.

***

66 Pa. C.S. § 701 (emphasis added). Section 5.21 of the PUC regulations also provide, in
pertinent part:

(a) A person complaining of an act done or omitted to be done by a person
subject to the jurisdiction of the [PUC], in violation, or claimed violation of a
statute which the [PUC] has jurisdiction to administer, or of a regulation or order
of the [PUC], may file a formal complaint with the [PUC].

52 Pa. Code § 5.21 (emphasis added).

RCJ-6
energy from a “customer-generator” in a manner that ensures adequate and reliable
service at the least cost to customers over time. Competition Act, as amended, 66
Pa. C.S. § 2807(e)(3.4). Thus, the AEPS Act regulations implement this
requirement by requiring EDCs, like West Penn, to offer net metering to certain
customer-generators and to enter into net metering agreements with those
customer-generators. The regulations also prescribe the rate at which a customer-
generator will be compensated for energy produced, the amount to be paid for
excess energy generated, and other costs under an agreement. See 52 Pa. Code §
75.13. As such, the net metering agreement in this case, which was entered into
subject to the Net Energy Metering Rider to the West Penn Tariff, and the
purportedly improper termination thereof, necessarily involve the reasonableness,
adequacy, and/or sufficiency of the service and rates of West Penn, a public utility,
with regard to net metering. Moreover, if West Penn has to pay for alternative
energy at the full retail rate that a customer-generator receives when it is not
actually a customer-generator as that term is defined under the AEPS Act, then
other ratepayers or the public utility may have to pay more for electricity.
Thus, this is not a simple statutory interpretation question as the majority
posits. Rather, the question here involves the complex interplay of the electric
service scheme and the use of alternative forms of energy, as regulated and
administered under the Public Utility Code, the Competition Act, and the AEPS
Act. Where statutes or parts of statutes “relate to the same persons or things or to
the same class of persons or things,” they are in pari materia and “shall be
construed together, if possible, as one statute.” 1 Pa. C.S. § 1932(a)-(b). The
question of whether a generation facility qualifies as a “customer-generator”
entitled to the special compensation provisions of “net-metering” has a significant

RCJ-7
impact on the provision of electric service and is intertwined with the interpretation
and application of West Penn’s tariff and its provision of services to its other
customers. “It is well-settled law that initial jurisdiction over matters involving the
reasonableness, adequacy[,] or sufficiency of a public utility’s service, facilities[,]
or rates is vested in the PUC and not in the courts.” Morrow v. Bell Tel. Co., 479
A.2d 548, 550 (Pa. Super. 1984). The PUC also has exclusive jurisdiction over a
utility’s “formation of reasonable rules and regulations governing the conditions
under which service, facilities[,] and rates shall be rendered, constructed[,] or
imposed.” Id. Therefore, we are required to read the Public Utility Code, the
Competition Act, and the AEPS Act in pari materia in ascertaining whether the
PUC has jurisdiction over the issues in this case.
In arriving at its conclusion, the majority considered only whether the AEPS
Act contains an “express” grant of authority, and it did not consider whether such
authority may be inferred based on a “strong and necessary implication” from the
text as this Court did in ARIPPA, 966 A.2d at 1211. In acknowledging the PUC’s
jurisdiction and authority under the AEPS Act, we recognized that although “[t]he
legislature imbues the [PUC] with authority in enabling statutes [and] [t]he
statutory grant of power must be clear[,] [i]f the statute’s text does not provide the
[PUC] with specific authority, a strong and necessary implication from such text
may, nonetheless, provide such authority.” Id. As discussed above, the
Legislature has expressly granted the PUC authority to administer the AEPS Act,
including defining the terms at issue here. However, to the extent it did not do so,

RCJ-8
there is at the very least a “strong and necessary implication” from the text of such
authority.7
That the relief requested is framed in terms of damages does not require a
different result. In Elkin, the Supreme Court rejected the plaintiff’s reliance upon
the analysis set forth in Feingold to support his assertion that the PUC does not
have jurisdiction in any case involving an action for damages. Elkin, 420 A.2d at
376. The Supreme Court found that this “interpretation [of Feingold] . . . is too
broad and would ‘virtually strip’ the PUC of all jurisdiction merely by framing the
allegations in contractual and/or trespassory terminology, and demanding
damages.” Id. at 375. Instead, the Supreme Court clarified that the issue in
Feingold was concerned only with the adequacy of remedies available under the
law, and resolution of that issue was not based upon whether the PUC had

7
See also Dep’t of Envtl. Res. v. Butler Cnty. Mushroom Farm, 454 A.2d 1 (Pa. 1982).
The question in that case was whether the Department of Environmental Resources (DER) had
the authority to issue administrative compliance orders under the Pennsylvania General Safety
Law (Act), Act of May 18, 1937, P.L. 654, as amended, 43 P.S. §§ 25-1-25-15. In considering
the issue, the Supreme Court reiterated the well-settled principle that “[t]he powers and authority
[to be exercised by administrative agencies] must be either expressly conferred [by the
legislature] or given by necessary implication.” Id. at 4 (emphasis added) (citations omitted).
The appellees argued that statutory construction was not necessary because the clear language of
the Act did not grant DER the authority to issue such orders, and thus there was no enforcement
scheme. Id. at 5. The Supreme Court rejected that argument and stated that such position
“ignored the facts that . . . it is inappropriate to determine the power of an administrative agency
in a linguistic vacuum . . . and . . . the power of administrative agencies includes such powers as
are implied necessarily.” Id. at 6. As for appellees’ contention that there was no enforcement
scheme in the Act, the Supreme Court concluded that such argument was “factually inadequate”
and “[t]he mere fact that this aspect of the enforcement scheme was not included in the Act is of
no moment since the Act must be read in pari materia with the applicable portions of the
Administrative Code.” Id. at 7 (citing 1 Pa. C.S. § 1932) (subsequent citations omitted). The
Supreme Court clarified the issue in the case as one dealing with “the authority of the agency
charged with the implementation” of the Act, and stated that the appellees “obviously ignore[d]
the well-recognized role of the adjudicative process as an alternative implementing tool.” Id.

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jurisdiction. Id. at 375. Because the majority relied on Feingold without
considering the Supreme Court’s subsequent clarification of that decision in Elkin,
I am not persuaded by that analysis. (Maj. Op. at 10.)
In sum, given that the PUC was specifically tasked with developing,
implementing, and monitoring the AEPS Act, I would find that “[t]he competence
of the [PUC] in the[ ] area[ of alternative energy and net metering, generally,] is
substantially greater than the court’s, and the need for uniformity of policy is
apparent.” Elkin, 420 A.2d at 376-77. By holding that the PUC does not have
primary exclusive jurisdiction to decide the specific definitional issues in this case,
the majority takes a large step backwards with regard to the fundamental concern
of promoting consistency and uniformity in the public utility arena and in the area
of alternative energy. Id. at 376. Moreover, it is the PUC, not the courts, that was
tasked with both restructuring the electric service industry and administering the
AEPS Act based upon the PUC’s special experience and expertise in such complex
areas. See 66 Pa. C.S. § 2804; 73 P.S. §§ 1648.5, 1648.7. It follows that neither
consistency nor uniformity is achieved by permitting the courts of common pleas
of this Commonwealth to impose differing interpretations of the AEPS Act, the
administration of which is specifically committed to a particular administrative
agency, the PUC.
For the foregoing reasons, I respectfully dissent and would reverse the order
of the trial court and require it to cede jurisdiction over the case to the PUC under
the doctrine of primary exclusive jurisdiction.

________________________________
RENÉE COHN JUBELIRER, Judge

Judge Covey joins in this dissenting opinion.

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