E. Hoffman-Lorah v. PA PUC ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Evangeline Hoffman-Lorah, :
Petitioner :
:
v. :
:
Pennsylvania Public Utility :
Commission, : No. 712 C.D. 2019
Respondent : Submitted: March 3, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: June 23, 2023
Evangeline Hoffman-Lorah (Petitioner), pro se, petitions this Court for
review of the Pennsylvania Public Utility Commission’s (Commission) May 23,
2019 opinion and order (Opinion and Order) dismissing her complaint against PPL
Electric Utilities Corporation (PPL) (Complaint) for failure to prove that PPL’s
smart meter installations constitute unsafe or unreasonable service under Section
1501 of the Public Utility Code (Code), 66 Pa.C.S. § 1501.1 Petitioner presents
seven issues for this Court’s review: (1) whether the Commission erred by holding
1
Section 1501 of the Code states, in relevant part:
Every public utility shall furnish and maintain adequate, efficient,
safe, and reasonable service and facilities, and shall make all such
repairs, changes, alterations, substitutions, extensions, and
improvements in or to such service and facilities as shall be
necessary or proper for the accommodation, convenience, and safety
of its patrons, employees, and the public.
66 Pa.C.S. § 1501.
that Petitioner was not entitled to an Americans with Disabilities Act (ADA)2
accommodation so as to prevent smart meter installation at her residence at 1635 4th
Street in Bethlehem, Pennsylvania (Residence); (2) whether the Commission erred
by holding that the General Assembly mandated smart metering for all
Pennsylvanians, with no opt-out; (3) whether the Commission erred by stating that
it decides each smart meter alleged harm case on its merits; (4) whether the
Commission erred by characterizing Petitioner’s requests to avoid smart meter
installation as requests to opt out, rather than as accommodation requests; (5)
whether the Commission erred by failing to inform Petitioner before her hearing that
her physician had to appear in person in order for the Commission to consider his
medical opinion; (6) whether the Commission erred by finding PPL’s medical
expert’s diagnosis credible, although he had never met or medically examined
Petitioner; and (7) whether the Commission erred by ignoring Petitioner’s separate,
formal complaint related to her property located at 4 North Street in Port Clinton,
Pennsylvania (Port Clinton Property), where her daughter resides. After review, this
Court affirms.
On January 26, 2018, Petitioner filed the Complaint with the
Commission opposing smart meter installation at her Residence. See Certified
Record (C.R.) at 1a. Petitioner averred therein, inter alia, that smart meters cause
adverse health effects and fires, and raise privacy and cybersecurity concerns, other
states have an opt out option for smart meters, and it is unlawful to force smart meter
devices on Pennsylvania consumers. Petitioner also alleged that, since smart meter
safety is questionable, she denied PPL permission to install a smart meter at her
Residence.
2
42 U.S.C. §§ 12101-12213.
2
On February 20, 2018, PPL filed its Answer to the Complaint, therein
denying Petitioner’s allegations that the current law does not allow a customer to opt
out of smart meter installation, and that a smart meter would have an adverse impact
on Petitioner’s health or safety. PPL averred that, in accordance with a 2008
amendment to the Code, known as Act 129 (Act 129),3 PPL is required to install
smart meters for all of its current PPL meter customers. On May 17, 2018, Petitioner
filed what the Commission considered to be an amendment to her Complaint (May
17, 2018 Filing), wherein she added that she also objected to the installation of a
smart meter at the Port Clinton Property. See C.R. at 38a.
On August 17, 2018, the Commission’s Administrative Law Judge
(ALJ) conducted an evidentiary hearing. Petitioner, pro se, testified, but presented
no witnesses. Petitioner also offered numerous exhibits, including purported
medical records from her physician, Stanley Yevelson, D.O. PPL offered the
testimony of: William Hennegan, Scott Larson, Christopher Davis, Ph.D., and Mark
Israel, M.D. (Dr. Israel). On September 24, 2018, Petitioner resubmitted the May
17, 2018 Filing, but handwrote thereon the Complaint’s docket number. See
C.R. at 417a. On November 15, 2018, the ALJ issued her initial decision (Initial
Decision), wherein she addressed both the Residence and Port Clinton Property, see
C.R. at 526a, and dismissed the Complaint for failure to prove by a preponderance
of evidence that the installation of the smart meter constitutes unsafe or unreasonable
service under Section 1501 of the Code.
By December 4, 2018 letter, Petitioner notified the Commission that
she was filing exceptions (Exceptions) to the Initial Decision. Therein, she also
sought to “clarify a misunderstanding of a separate complaint filed involving a
different property[,]” C.R. at 567a, stating:
3
Act of October 15, 2008, P.L. 1592, No. 129, 66 Pa.C.S. §§ 2801-2815.
3
The second part of this letter is to clarify the
misunderstanding of a separate[,] formal complaint filed
for [the Port Clinton Property], a property which I own and
where my daughter resides. It has erroneously been
included with this docket number for our primary
[R]esidence in Bethlehem and mistakenly entered as an
“amendment[,”] although I filed no such amendment. The
formal complaint for the Port Clinton [P]roperty always
was to be taken as a separate case, apart from this
[C]omplaint, as it is a different property in a different
location with a completely different situation. This is the
reason I filed and sent the paperwork individually. In fact,
in a letter to [the ALJ] dated June 15, 2018, I stated that
there was a “separate complaint filed for [the Port Clinton
Property.”] Also, when I contacted both PPL and Grid
One (the company hired to install smart meters on behalf
of PPL), both were aware of the [Bethlehem C]omplaint
regarding the [Residence] and both unaware of any
complaints regarding the Port Clinton [Property]. Any
mention of this second address during the hearing was
only to illustrate my personal experiences with smart
meters. Because of this, I am including and filing for the
third time a separate[,] formal complaint for [the Port
Clinton Property].
C.R. at 568a. In addition, Petitioner enclosed a third complaint form related to the
Port Clinton Property. On May 23, 2019, the Commission denied Petitioner’s
Exceptions, adopted the ALJ’s Initial Decision, and dismissed the Complaint.
Petitioner appealed to this Court.4, 5
The instant matter was stayed pending the Pennsylvania Supreme
Court’s consideration and disposition of the appeals from this Court’s order in
Povacz v. Pennsylvania Public Utility Commission, 241 A.3d 481 (Pa. Cmwlth.
4
On June 5, 2019, Petitioner’s daughter, Treasure Hoffman, filed a complaint with the
Commission at Docket No. C-2019-03010414, seeking to prevent the installation of a smart meter
at the Port Clinton Property. On August 14, 2019, the ALJ issued a separate decision under Docket
No. C-2019-03010414 dismissing that complaint based on the doctrine of lis pendens and pursuant
to Section 5.101(a)(6) of the Commission’s Regulations, 52 Pa. Code § 5.101(a)(6), because the
complaint “raise[d] the same issues that have been decided by the Commission at Docket No. C-
2018-2644957[.]” Petitioner Br., Ex. H at 1.
5
On July 8, 2019, PPL filed a notice of intervention with this Court.
4
2020) (Povacz I), aff’d in part, rev’d in part, 280 A.3d 975 (Pa. 2022) (Povacz II),
wherein this Court held that Act 129 does not mandate the installation of smart
meters, and that the Commission had authority to grant customers an
accommodation based on their health concerns.6 On August 16, 2022, the
Pennsylvania Supreme Court issued Povacz II.
The Povacz II Court concluded:
Act 129 does mandate that [electric distribution
companies] [(]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 [Commission] or [the] EDC,
but to obtain one[,] the customer must establish by a
preponderance of the evidence that installation of a
smart meter violates Section 1501 [of the Code].
Povacz II, 280 A.3d at 983-84 (emphasis added; footnote omitted).
The Povacz II Court explained:
To carry [her] burden of proof on a Section 1501 [of the
Code] claim, a smart meter challenger may be required to
present medical documentation and/or expert testimony
demonstrating that the furnishing of a smart meter
constitutes unsafe or unreasonable service in violation of
Section 1501 [of the Code] under the circumstances
presented.
Id. at 1000.
The Povacz II Court expounded:
Specific to smart meters and [Radio Frequency] [(]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, [an] expert opinion rendered to a reasonable
6
Multiple appeals were taken from this Court’s Order.
5
degree of medical certainty that RF emissions from the
smart meters, either alone or cumulative to other sources
of RF emissions, caused them 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.
Id. at 1006 (emphasis added; citation omitted).
On October 6, 2022, this Court lifted the stay and directed the parties
to file supplemental briefs addressing the Povacz II decision’s impact on the instant
appeal. The Commission and PPL submitted supplemental briefs. Because
Petitioner did not timely file a supplemental brief, by February 23, 2023 Order, this
Court precluded Petitioner from filing one.
Initially, Pennsylvania Rule of Appellate Procedure (Rule) 2116(a)
states, in relevant part, 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).
Here, Petitioner listed seven issues in her Statement of Questions. See Petitioner Br.
at 7; see also supra at 1-2. However, in other portions of her brief, Petitioner raised
issues that were not included in the Statement of Questions “or fairly suggested
thereby.” Pa.R.A.P. 2116(a). Accordingly, this Court shall restrict its review to
those issues Petitioner included in her Statement of Questions.
Preliminarily, the Commission asserts that Petitioner attempts to raise
several issues on appeal that she did not raise before the Commission, and thus,
Petitioner waived those issues. Specifically, the Commission contends:
[Petitioner] attempts to raise several claims that were
neither raised during her evidentiary hearing on August
17, 2018, nor included in her Main Brief to the
Commission filed on September 24, 2018. These claims
include, inter alia:
6
1. That forced [smart meter] deployment on
[Petitioner’s] property violates the due process, equal
protection, and clean air protections in [a]rticle [I] of
the Pennsylvania State Constitution.[7]
2. That the Commission’s determination violates the
[ADA] . . . by refusing to provide an accommodation.
3. That the Commission’s decision is contrary to
[f]ederal law and violates [Petitioner’s] substantive
due process and equal protection rights under the
Fourteenth Amendment of the United States (U.S.)
Constitution [(Fourteenth Amendment)].[8]
Commission Br. at 56-57 (citations omitted).
With respect to appellate petitions for review, Rule 1551(a) specifies,
in pertinent part:
Only questions raised before the government unit shall
be heard or considered, except:
(1) Questions involving the validity of a statute.
(2) Questions involving the jurisdiction of the government
unit over the subject matter of the adjudication.
(3) Questions that the court is satisfied the petitioner could
not by the exercise of due diligence have raised before the
government unit. If, upon hearing before the court, the
court is satisfied that any such additional question within
the scope of this paragraph should be raised, it shall
remand the record to the government unit for further
consideration of the additional question.
Pa.R.A.P. 1551(a) (emphasis added).
The record reflects that Petitioner did not raise the aforementioned
issues before the Commission, and Petitioner does not claim otherwise in her Reply
7
See PA. CONST. art. I., § 27.
8
U.S. CONST. amend. XIV, § 1.
7
Brief to this Court. Thus, Petitioner has waived those issues,9 and this Court shall
not address them herein.10 See Pa.R.A.P. 1551; see also Met-Ed Indus. Users Grp.
v. Pa. Pub. Util. Comm’n, 960 A.2d 189 (Pa. Cmwlth. 2008) (where, under Rule
1551(a), customers waived a federal preemption issue not previously raised before
the Commission). Accordingly, Petitioner waived her first issue - whether the
Commission erred by holding that Petitioner was not entitled to an ADA
accommodation.
Petitioner’s second issue - that the Commission erred by holding that
Act 129 mandated smart metering for all Pennsylvanians, with no opt out - lacks
merit in light of the Povacz II Court’s declaration that “Act 129 . . . does not provide
electric customers the ability to opt out of having a smart meter installed.” Povacz
II, 280 A.3d at 983.
With respect to Petitioner’s third issue - whether the Commission erred
by stating that it decides each smart meter harm case on its merits, while dismissing
every single case - the Commission’s Opinion and Order reflects that the
Commission decided this matter on its merits and its decision is consistent with the
9
To the extent that Petitioner’s discussion pertaining to perceived constitutional due
process, equal protection, and clean air violations implicates Act 129’s validity, see Pa.R.A.P.
1551(a)(1), this Court in Povacz I declined to recognize the petitioners’ claim regarding a violation
of their Fourteenth Amendment liberty interests in bodily integrity. This Court notes that
“[c]onstitutional protections apply against state actors. [PPL] is not a state actor in relation to its
installation of smart meters and provision of electricity to its customers.” Povacz I, 241 A.3d at
486 n.9. Further, and more importantly, Petitioner did not raise these issues in her Statement of
Questions and, thus, this Court shall not address them.
10
Petitioner claims in her brief that she should be given latitude as a pro se litigant.
Notwithstanding, the ALJ warned Petitioner that, although she would be asking questions
throughout the hearing, the ALJ was not Petitioner’s attorney. Petitioner acknowledged that she
understood the ALJ’s warning. “While this Court is sympathetic to the difficulty facing all pro se
parties, it is axiomatic that a party seeking to represent [her]self assumes the risk that h[er] lack of
legal knowledge might prove to be h[er] undoing.” Commonwealth v. Geatti, 35 A.3d 798, 800
(Pa. Cmwlth. 2011).
8
law as declared in Povacz II. Simply put, Petitioner cannot opt out of smart meter
installation, and Petitioner failed to satisfy her burden to obtain an accommodation.
Next, in addressing Petitioner’s fourth issue - whether the Commission
characterized Petitioner’s request as a request to opt out rather than a request for an
accommodation - the Commission properly considered Petitioner’s request that a
smart meter not be installed at her Residence, but concluded that there was no legal
or record basis to forego such installation, and that Petitioner had not met her burden
to obtain an accommodation.
Regarding Petitioner’s fifth issue - whether the Commission erred by
not informing her before the hearing that her physician had to appear in person for
the Commission to consider his medical opinion - the Commission notified
Petitioner that she was required to present evidence to support her case. On April 4,
2018, the Commission’s prehearing order, which Petitioner received, notified her:
“YOU WILL LOSE THIS CASE IF YOU DO NOT TAKE PART IN THIS HEARING AND
PRESENT EVIDENCE ON THE ISSUES RAISED[,]” and provided instructions for
subpoenaing witnesses. C.R. at 21a. Further, to the extent that Petitioner’s failure
to offer her physician’s live testimony impacted her case, the Commission had no
duty to instruct Petitioner how to prepare and present her case. A pro se litigant
bears the risk of his or her lack of legal knowledge. See Commonwealth v. Geatti,
35 A.3d 798 (Pa. Cmwlth. 2011); see also Green v. Harmony House N. 15th St.
Hous. Ass’n, Inc., 684 A.2d 1112 (Pa. Cmwlth. 1996).
In her sixth issue, Petitioner contends that the Commission erred by
crediting PPL’s physician’s testimony over her physician’s medical records where
PPL’s physician never examined Petitioner. The law is well established that
“matters of credibility and evidentiary weight are for the Commission[.]” NRG
Energy, Inc. v. Pa. Pub. Util. Comm’n, 233 A.3d 936, 957 (Pa. Cmwlth. 2020).
“Failure to conduct a physical examination does not go to a medical witness’
9
competency; rather, it goes to his credibility.” Tatano v. Workers’ Comp. Appeal
Bd. (Copyworld of Pittsburgh), 698 A.2d 123, 127 (Pa. Cmwlth. 1997). Here, the
Commission’s Opinion and Order reflects that it carefully reviewed and properly
weighed the evidence, including Dr. Israel’s testimony. “[T]his Court may not
substitute its view of the evidence for that of the Commission.” NRG Energy, 233
A.3d at 957. Thus, Petitioner’s sixth argument fails.
Finally, relative to her seventh issue, Petitioner contends that the
Commission erred by addressing her objection to smart meter installation at her Port
Clinton Property, for which Petitioner claims she filed a separate, formal complaint.
Specifically, Petitioner asserts:
[Petitioner’s] repeated requests for a separate hearing for
the Port Clinton [Property] were never addressed. [The
ALJ] contradicted herself by including the two addresses
in the same Docket [N]umber (C-2018-2644957) in the
Initial Decision dated November 15, 2018, “[Petitioner]
requests a smart meter not be installed: 1) [at the
Residence]; and 2) [at the Port Clinton Property]” . . . . ;
and, in her Opinion and Order of May 23, 2019, “On May
17, 2018, [Petitioner] filed an amendment to her
Complaint adding that, in addition to objecting to a smart
meter being installed at her service address at [the
Residence] . . . , she also objected to the installation of a
smart meter at [the Port Clinton Property]; and, later in the
same Opinion and Order, stating “In its Replies to the
[Petitioner’s] third Exception, PPL states that, to its
knowledge, there is no separate formal complaint on file
with the Commission for the [Port Clinton Property].
Notwithstanding, PPL agrees that the Port Clinton
[Property] will not be subject to the disposition of this
proceeding.”
....
Either [the] Port Clinton [Property] truly was included in
[Petitioner’s Complaint], Docket [N]umber C-2018-
2644957, as [Petitioner] was told on two separate
occasions by [the Commission’s] Secretary Rosemary
Chiavetta, and as [the] ALJ [] decided in her Initial
10
Decision, in which case PPL should have recognized the
fact and abstained from installment of a[] . . . smart meter
(as it did at the [Residence]) at that address, as was
requested by [Petitioner] in an email to [attorney] Devin
Ryan on May 27, 2019: “I politely request that installation
of smart meters at [the Residence and the Port Clinton
Property], b[e] delayed until the resolutions of the petition
and appeal, as is within my rights according to [the
Code],” and as is customary pending the outcome of a
dispute; or a separate formal complaint for the Port Clinton
[Property] should have been recognized by the
[Commission]. No recognition of a separate complaint
was ever received, nor was [Petitioner] ever informed that
the Port Clinton [Property] would be granted a separate
hearing. If the [Commission] had properly given attention
to this matter, [a smart] meter would not and should not
have been deployed on the Port Clinton [Property] by PPL,
and the expensive modification of moving the meter
would not have been required.
Petitioner Br. at 21-23 (citations omitted).
Section 5.81(a) of the Commission’s Regulations provides that “[t]he
Commission or presiding officer, with or without motion, may order proceedings
involving a common question of law or fact to be consolidated. The Commission
or presiding officer may make orders concerning the conduct of the proceeding as
may avoid unnecessary costs or delay.” 52 Pa. Code § 5.81(a) (emphasis added).
The issues pertaining to the Residence and the Port Clinton Property were identical
- Petitioner objected to smart meter installations on the same bases, just in two
different locations and, regardless of the location, the result is the same, especially
since she did not assert that she would have presented additional evidence. See
Povacz II. Thus, the Commission acted within its authority when it consolidated the
matters. Further, Petitioner submitted her objection to smart meter installation at the
Port Clinton Property on several occasions and, in one instance, wrote the
11
Complaint’s docket number on the filing.11 Accordingly, Petitioner cannot claim
ignorance of the consolidation of her two actions.
For all of the above reasons, the Commission’s Opinion and Order is
affirmed.
_________________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this matter.
11
Petitioner admits that a Commission representative twice told her that the Port Clinton
Property had been included in the Complaint. See Petitioner Reply Br. at 22.
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Evangeline Hoffman-Lorah, :
Petitioner :
:
v. :
:
Pennsylvania Public Utility :
Commission, : No. 712 C.D. 2019
Respondent :
ORDER
AND NOW, this 23rd day of June, 2023, the Pennsylvania Public Utility
Commission’s May 23, 2019 order is affirmed.
_________________________________
ANNE E. COVEY, Judge