A. Schmukler v. PA PUC ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alan Schmukler, :
Petitioner :
:
v. :
:
Pennsylvania Public Utility :
Commission, : No. 1102 C.D. 2019
Respondent : Submitted: April 21, 2023
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE STACY WALLACE, Judge
OPINION BY
JUDGE COVEY FILED: September 6, 2023
Alan Schmukler (Petitioner) petitions this Court pro se for review of
the Pennsylvania Public Utility Commission’s (Commission) July 23, 2019 Final
Order denying Petitioner’s Exceptions to the Administrative Law Judge’s (ALJ)
Initial Decision (Decision) that denied Petitioner’s formal complaint against PPL
Electric Utilities Corporation (PPL) (Complaint). There are three issues before this
Court: (1) whether the Commission properly interpreted Act 129 of 20081 (Act 129)
as not including a smart meter opt-out for customers where the Pennsylvania
Supreme Court later held that Section 2807(f)(2) of the Public Utility Code (Code)2
mandates the system-wide installation of smart meter technology, including smart
meters; (2) whether the Commission properly determined that Petitioner failed to
prove that the installation of advanced metering infrastructure (AMI) meters on his
1
Act of October 15, 2008, P.L. 1592, No. 129.
2
66 Pa.C.S. § 2807(f)(2).
property violates Section 1501 of the Code,3 where Petitioner did not meet the
preponderance of evidence standard; and (3) whether the Commission’s
determination was within its administrative discretion and supported by substantial
evidence in accordance with Section 704 of the Administrative Agency Law
(Law).4, 5 After review, this Court affirms.
Facts
On August 11, 2017, Petitioner filed the Complaint challenging PPL’s
planned installation of a new AMI meter at Petitioner’s service address, and alleging
that smart meters are a health hazard and cause fires. On March 9, 2018, the ALJ
held a telephone evidentiary hearing. On August 16, 2018, the ALJ issued the
Decision dismissing the Complaint because Petitioner failed to prove by a
preponderance of the evidence that the AMI meter installation constitutes unsafe or
3
66 Pa.C.S. § 1501 (relating to character of service and facilities).
4
2 Pa.C.S. § 704 (relating to disposition of appeals).
5
Petitioner presented eight issues in his “QUESTIONS TO BE ANSWERED” in his brief: (1)
whether the Commission and PPL are legally restrained from offering an accommodation to
Petitioner; (2) whether a violation of Section 1501 of the . . . Code requires service that is both
unsafe and unreasonable; (3) whether the required standard of evidence, i.e., conclusive causal
connection, as ruled on by the Pennsylvania Supreme Court in Povacz v. Pennsylvania Public
Utility Commission, 280 A.3d 975 (Pa. 2022), was properly conceived, and must Petitioner prove
a conclusive causal connection to harm for all of humanity; (4) whether Petitioner proved by a
preponderance of evidence that there is a conclusive causal connection between the smart meter’s
radio frequency fields and his adverse health effects; (5) whether Petitioner established that he has
suffered from Electromagnetic Hypersensitivity for over 30 years; (6) whether the standard of
evidence (conclusive causal connection) that Petitioner was held to is vastly higher than the
standard to which the Commission and PPL were held; (7) whether the Commission and PPL are
recipients of federal funds, and therefore required to abide by federal law as it overlaps with
Pennsylvania law; and (8) whether moving a smart meter farther from Petitioner’s home is a true
and safe accommodation of his disability. Petitioner Suppl. Br. at 3. Because the Commission’s
“COUNTER[]STATEMENT OF THE QUESTIONS INVOLVED” encompass the pertinent issues before
this Court, Commission Suppl. Br. at 4, and the issues presented in Petitioner’s initial brief are
subsumed in those issues, see Petitioner Br. at 14 (because the pages are not numbered in
Petitioner’s brief, the page numbers referenced herein reflect electronic pagination), this Court will
address those issues accordingly.
2
unreasonable service under Section 1501 of the Code. The Decision also contained
certain fire safety recommendations for PPL based on judicially noticed materials.
Both parties filed Exceptions to the Decision. On July 24, 2019, the Commission
filed its Final Order denying Petitioner’s Exceptions, granting PPL’s Exceptions,
adopting the Decision as modified, and dismissing the Complaint. On July 24, 2019,
Petitioner appealed to this Court.6 On September 3, 2019, PPL filed a Notice of
Intervention.7
On January 15, 2020, this Court stayed the proceedings in the instant
matter pending the disposition of three consolidated appeals pending before this
Court involving the same or similar issues. Those consolidated appeals were Povacz
v. Pennsylvania Public Utility Commission (Pa. Cmwlth. No. 492 C.D. 2019, filed
October 8, 2020), Murphy v. Pennsylvania Public Utility Commission (Pa. Cmwlth.
No. 606 C.D. 2019, filed October 8, 2020), and Randall v. Pennsylvania Public
Utility Commission (Pa. Cmwlth. No. 607 C.D. 2019, filed October 8, 2020)
(collectively, Povacz appeals). On October 8, 2020, this Court affirmed in part,
reversed and remanded in part, and vacated and remanded in part the Commission’s
Orders underlying the Povacz appeals. See Povacz v. Pa. Pub. Util. Comm’n, 241
A.3d 481 (Pa. Cmwlth. 2020) (Povacz - Cmwlth.), aff’d in part, rev’d in part, Povacz
6
This Court’s review of a [Commission] adjudication determines
“whether constitutional rights have been violated, an error of law
has been committed, or the Commission’s findings and conclusions
are, or are not, supported by substantial evidence.” Barasch v. [Pa.]
Pub[.] Util[.] Comm[’n], . . . 493 A.2d 653, 655 ([Pa.] 1985). As to
questions of law, this Court’s scope of review is plenary, and its
standard of review is de novo. See Popowsky v. [Pa.] Pub[.] Util[.]
Comm[’n], 910 A.2d 38 . . . ([Pa.] 2006).
Twin Lake Utils., Inc. v. Pa. Pub. Util. Comm’n, 281 A.3d 384, 389 n.5 (Pa. Cmwlth. 2022).
7
On January 10, 2020, Petitioner filed a Petition to Include Petitioner's Original 27
Looseleaf Binder Exhibits in the Certified Record (Application to Include Exhibits).
3
v. Pa. Pub. Util. Comm’n, 280 A.3d 975 (Pa. 2022) (Povacz). In Povacz - Cmwlth.,
this Court ruled:
[W]e affirm the [Commission’s] rejection of [the
c]onsumers’ constitutional challenge. We reverse the
[Commission’s] conclusion that it lacks authority to
accommodate [the c]onsumers’ desire to avoid [radio
frequency (]RF[)] emissions from smart meters and vacate
the [Commission’s] determination that such
accommodation would not be reasonable. We affirm the
[Commission’s] determination of the burden of proving
harm. We affirm the [Commission’s] findings of fact. We
remand this matter to the [Commission] for determinations
of whether accommodations are appropriate for each of
the [c]onsumers, and if so, what those accommodations
should be.
Id. at 494-95. All parties to the Povacz appeals filed Petitions for Allowance of
Appeal (Appeal Petitions) in the Pennsylvania Supreme Court. Due to the status of
the Povacz appeals, on December 15, 2020, this Court stayed the proceedings in the
instant matter and the other pending smart meter appeals.
On May 12, 2021, the Pennsylvania Supreme Court granted the Appeal
Petitions in part. See Povacz v. Pa. Pub. Util. Comm’n, 253 A.3d 220 (Pa. 2021)
(Povacz - Allocatur). The Pennsylvania Supreme Court granted review as to the
following issues:
(1) Did the Commonwealth Court commit an error of law
by concluding that the statute does not mandate universal
deployment of smart meters, which is contrary to the plain
and unambiguous statutory language of Section 2807(f)(2)
of the . . . Code . . . ?
(2) On a question of first impression involving Act 129’s
smart meter deployment mandate, did the Commonwealth
Court abuse its discretion by interpreting the . . . Code in
a manner that violated the rules of statutory construction
and disregarded the legislative intent of the General
Assembly?
4
(3) Did the Commonwealth Court commit an error of law
by articulating a burden of proof under Section 1501 of the
. . . Code . . . that could result in a utility being found in
violation of the Code without evidence of harm?
....
[(4)] Did the [Commonwealth] Court err when it
concluded that Act 129 allows individual [c]onsumers to
reject or “opt-out” of smart meter technology, on the
grounds that Act 129 requires that “[e]lectric distribution
companies [(EDCs)] shall furnish smart meter
technology,” [where] Webster’s Dictionary defines
“furnish” as meaning “to provide with what is needed; . . .
supply, give,” and that this definition of “furnish” does not
imply that the recipient is forced to accept that which is
offered?
....
[(5)] Did the [Commonwealth C]ourt err as a matter of law
by upholding the [Commission’s] interpretation of Section
1501 of the . . . Code as requiring[,] as to issues of safety[,]
proof of a “conclusive causal connection” between RF
exposure from smart meters and harm to [the p]etitioners,
when this heavy and unprecedented burden is not
compelled by the language of the statute, where the
statutory and dictionary definition of the word “safe”
includes protection from the possibility of harm, not just
the conclusively proven certainty of harm, and where
imposition of this burden would render it impossible for
[the p]etitioners to prove their cases?
Povacz - Allocatur, 253 A.3d at 221.
On August 16, 2022, the Pennsylvania Supreme Court issued its
Opinion in the Povacz appeals. See Povacz. The Povacz Court held:
[W]e reverse the Commonwealth Court’s ruling that Act
129 does not mandate the installation of smart meters. We
affirm the Commonwealth Court’s conclusion that the
[Commission] did not err in finding that [the c]ustomers
failed to meet their burden of proving, by a preponderance
of the evidence, a conclusive causal connection between
RF emissions from smart meters and adverse human
5
health effects. We reverse the Commonwealth Court’s
remand to the [Commission] for consideration of whether
[the c]ustomers established that smart meter service is
unreasonable under Section 1501 [of the Code].
Id. at 1014.
By October 6, 2022 Order, this Court lifted the stay in the instant matter
and directed Petitioner to file a supplemental brief addressing the Povacz decision,
including its effect on his pending petition for review, by November 7, 2022. This
Court further directed the Commission and PPL to file briefs within 30 days of
service of Petitioner’s supplemental brief. All briefs have been filed and the matter
is ripe for disposition.
Discussion
1. Act 129
Initially, Act 129 added Section 2807(f) of the Code which provides, in
relevant part:
Smart meter technology and time of use rates.--
(1) Within nine months after the effective date of this
paragraph, [EDCs] shall file a smart meter technology
procurement and installation plan with the [C]ommission
for approval. The plan shall describe the smart meter
technologies the [EDC] proposes to install in accordance
with paragraph (2).
(2) [EDCs] shall furnish smart meter technology as
follows:
(i) Upon request from a customer that agrees to
pay the cost of the smart meter at the time of the
request.
(ii) In new building construction.
(iii) In accordance with a depreciation schedule
not to exceed 15 years.
6
....
(5) By January 1, 2020, or at the end of the applicable
generation rate cap period, whichever is later, a default
service provider shall submit to the [C]ommission one or
more proposed time-of-use rates and real-time price plans.
The [C]ommission shall approve or modify the time-of-
use rates and real-time price plan within six months of
submittal. The default service provider shall offer the
time-of-use rates and real-time price plan to all
customers that have been provided with smart meter
technology under paragraph (2)(iii). Residential or
commercial customers may elect to participate in time-
of-use rates or real-time pricing. The default service
provider shall submit an annual report to the price
programs and the efficacy of the programs in affecting
energy demand and consumption and the effect on
wholesale market prices.
....
(7) An [EDC] may recover reasonable and prudent
costs of providing smart meter technology under
paragraph (2)(ii) and (iii), as determined by the
[C]ommission. . . .
66 Pa.C.S. § 2807(f) (text emphasis added).
Act 129 defines “smart meter technology” as follows:
[T]he term “smart meter technology” means technology,
including metering technology and network
communications technology capable of bidirectional
communication, that records electricity usage on at least
an hourly basis, including related electric distribution
system upgrades to enable the technology. The
technology shall provide customers with direct access to
and use of price and consumption information. The
technology shall also:
(1) Directly provide customers with information on their
hourly consumption.
(2) Enable time-of-use rates and real-time price programs.
7
(3) Effectively support the automatic control of the
customer’s electricity consumption by one or more of the
following as selected by the customer:
(i) the customer;
(ii) the customer’s utility; or
(iii) a third party engaged by the customer or the
customer’s utility.
66 Pa.C.S. § 2807(g).
In its Final Order, the Commission explained:
While Act 129 does not provide customers a general “opt-
out” right from smart meter installation at a customer’s
residence, a customer’s formal complaint that raises a
claim under Section 1501 of the Code . . . related to the
safety of a utility’s installation and use of a smart meter at
the customer’s residence is legally sufficient to proceed to
an evidentiary hearing before an ALJ.
As the party seeking affirmative relief from the
Commission, the complainant in a formal complaint
proceeding has the burden of proof. [See Section 332(a)
of the Code,] 66 Pa.C.S. § 332(a). The burden of proof is
the “preponderance of the evidence” standard. To
establish a fact or claim by a preponderance of the
evidence means to offer the greater weight of the evidence,
or evidence that outweighs, or is more convincing than, by
even the smallest amount, the probative value of the
evidence presented by the other party.
Final Order at 9 (citations omitted).
In Povacz, our Supreme Court concluded:
Act 129 does mandate that EDCs furnish smart meters to
all electric customers within an electric distribution
service area and does not provide electric customers the
ability to opt out of having a smart meter installed. An
electric customer with concerns about smart meters may
seek an accommodation from the [Commission] or
EDC,[FN]5 but to obtain one the customer must establish by
a preponderance of the evidence that installation of a smart
8
meter violates Section 1501 [of the Code]. In this case,
the electric customers did not prove that installation of a
smart meter at their premises violates Section 1501 [of the
Code]; therefore, the [Commission] was not required to
prescribe any remedial action. Having so concluded, we
reverse the Commonwealth Court’s ruling that Act 129
does not mandate the installation of smart meters.
Additionally, we clarify the use of the conclusive causal
connection standard for proving a violation under Section
1501 [of the Code] and hold that a preponderance of the
evidence is the standard that applies to claims brought
under Section 1501 [of the Code]. Finally, we reverse the
Commonwealth Court’s remand of the case to the
[Commission].
[FN]5
This holding does not preclude an electric
utility from providing a reasonable
accommodation to an electric customer in the
absence of a Section 1501 [of the Code] violation
pursuant to a customer service policy.
Povacz, 280 A.3d at 983-84.
The Povacz Court explained:
Contrary to [the c]ustomers’ claim that [Section
2807](f)(5) [of the Code] supports their notion of customer
opt-out, providing a customer with optional money-saving
services makes sense only in the context of the mandatory
system-wide installation of smart meter technology. The
language highlighted above indicates that time-of-use
rates and real-time price plans are optional services
available to all customers whose Legacy meters[8] have
been replaced with smart meters. If [Section
2807](f)(2)(iii) [of the Code] applies only to smart meters
furnished to early technology adopters and new
construction customers, then all other customers
connected to the electric distribution system would not
have smart meters and, therefore, could not elect to
participate in the optional services. That result conflicts
with the purpose of the [Energy Efficiency and
8
Legacy meters are the traditional meters that suppliers cannot communicate with or access
remotely.
9
Conservation] program to reduce electric consumption
and demand across the Commonwealth.
....
[Further,] [t]he recovery of costs by EDCs makes sense
only in the context of a mandatory system-wide
installation of smart meter technology, as one such cost
would include the removal and depreciation of Legacy
meters. The lack of a reference in [Section 2807](f)(7) [of
the Code] to early technology adopters identified in
[Section 2807](f)(2)(i) [of the Code] is obvious - a
customer who requests the installation of smart meter
technology in advance of the schedule in a [Commission]-
approved plan must pay for the smart meter at the time of
request. Thus, there is no cost for EDCs that furnish smart
meters to early technology adopters to recover. 66 Pa.C.S.
§ 2807(f)(2)(i). If [Section 2807](f)(2)(iii) [of the Code]
applies only to smart meters furnished to new building
construction, then the reference to [Section 2807](f)(2)(ii)
[of the Code] in [Section 2807](f)(7) [of the Code] is
superfluous.
Povacz, 280 A.3d at 997-98. Accordingly, because the Pennsylvania Supreme Court
later held that Section 2807(f)(2) of the Code mandates the system-wide installation
of smart meter technology, including smart meters, the Commission properly
interpreted Act 129 that it does not include a smart meter opt-out for customers.
2. Section 1501 of the Code
Section 1501 of the Code provides, 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 (emphasis added).
10
The Povacz Court instructed:
A customer seeking affirmative relief from the
[Commission] must prove by a preponderance of the
evidence that the named utility was responsible or
accountable for the problem described in the complaint
and that the offense was a violation of the Code, a
[Commission] regulation or [o]rder, or a violation of a
[Commission]-approved tariff. [See] 66 Pa.C.S. §§
332(a), 701; Samuel J. Lansberry, Inc. v. Pa. Pub. Util.
Comm’n, . . . 578 A.2d 600 ([Pa. Cmwlth.] 1990)[.] . . .
Although Act 129 does not provide an electric customer
with the right to opt-out of the installation of a smart meter
at their residence, they [sic] may file a complaint raising a
claim that installation of a smart meter violates Section
1501 of the Code.
....
Pursuant to [] [S]ection [1501 of the Code], an EDC (as a
public utility) must provide service that is, inter alia, both
safe and reasonable. To carry their [sic] 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.
Povacz, 280 A.3d at 999-1000 (italics and bold emphasis added; footnote omitted).
In its Final Order, the Commission explained:
[I]n order to prevail in a Section 1501 [of the Code] claim
against an EDC alleging that an AMI meter caused or will
cause adverse health effects or harm to human health, the
[c]omplainant must demonstrate by a preponderance of the
evidence a “conclusive causal connection” between the
harm to human health and the RFs from the AMI meter.
Final Order at 14.
11
The Povacz Court expounded:
“Conclusive causal connection” means that the proffered
evidence must support the conclusion that a causal
connection existed between a service or facility and the
alleged harm. It is not possible for evidence that is
inconclusive to be sufficient to meet the preponderance of
the evidence standard. Inconclusive means that the
evidence does not lead to a conclusion of a definite result
one way or the other. While the preponderance of the
evidence standard is not stringent, it does require that the
plaintiff’s evidence ever so slightly (like, with the weight
of a feather) supports the plaintiff’s contention. Evidence
that does not support a conclusion (or is inconclusive)
cannot meet that minimal burden. Accord Ethan Habrial
v. Metro[.] Edison Co[.], No. C-2018-3005907, 2020 WL
3840469, at *3 (Pa. P.U.C. June 29, 2020) (“The decision
of the Commission must be supported by substantial
evidence. 2 Pa.C.S. § 704. ‘Substantial evidence’ is such
relevant evidence that a reasonable mind might accept as
adequate to support a conclusion. More is required than a
mere trace of evidence or a suspicion of the existence of a
fact sought to be established.”). Thus, where scientific
evidence is required to establish the safety of a service or
facility, use of the evidentiary standard of “conclusive
causal connection” to assess the evidence is correct.
Povacz, 280 A.3d at 1006-07.
Here, Petitioner argues:
[] [P]etitioner here asserts that he has demonstrated a
conclusive causal connection of harm to himself from
smart meter radiation, and that he need not demonstrate
harm to all of humanity. He has a disability of
Electromagnetic Hypersensitivity (EHS) which is
protected under law by the Americans with Disabilities
Act [(ADA)][,][9] (also [t]he Fair Housing [Amendments]
Act [of 1988])[,][10] [t]he [ADA] Amend[ments Act of
2008] (ADAA) and [t]he United States [(U.S.)] Access
9
42 U.S.C. §§ 12101-12213.
10
42 U.S.C. §§ 3601-3631.
12
Board[11] [sic] includes electromagnetic sensitivity in its
guidelines: (See Petitioner[] Br[.] . . . [at] 51-53.)
The ADA as amended does not require, nor should the
[Commission], that a situation be unsafe for all of
humanity, but only for someone with a disability who
belongs to a protected class. An analogy will clarify.
Epilepsy is a disability that can be aggravated by exposure
to flashing lights. A person with epilepsy who requests an
accommodation in a work or housing situation[] does not
have to prove that flashing lights trigger epilepsy in all
people, just those with epilepsy.
Petitioner Suppl. Br. at 8-9 (italics added).
In its Final Order, the Commission concluded:
Upon review of the record on this issue, the [] Decision
and the applicable law, we affirm the ALJ’s conclusion
that [Petitioner] did not meet his burden of proof
regarding his claim that PPL’s smart meter caused or
will cause adverse health effects for [Petitioner].
Specifically, we affirm the ALJ’s finding that [Petitioner]
failed to demonstrate a conclusive causal connection
between the low-level RF fields from a PPL smart
meter and adverse health effects for [Petitioner].
Final Order at 43 (bold and underline emphasis added). Thus, the Commission did
not require Petitioner to prove that use of a smart meter is “unsafe for all of
humanity[,]” only that it is unsafe for Petitioner. Petitioner Suppl. Br. at 9.
Accordingly, the Commission properly determined that Petitioner failed to prove
that AMI meter installation on his property violated Section 1501 of the Code, when
he did not meet the preponderance of evidence standard.
11
“The [U.S.] Access Board is an independent federal agency that promotes equality for
people with disabilities through leadership in accessible design and the development of
accessibility guidelines and standards.” https://www.access-board.gov/about/ (last visited Sept.
5, 2023).
13
3. Section 704 of the Law
Section 704 of the Law provides, in relevant part:
The court shall hear the appeal without a jury on the record
certified by the Commonwealth agency. After hearing,
the court shall affirm the adjudication unless it shall
find that the adjudication is in violation of the
constitutional rights of the appellant, or is not in
accordance with law, or that the provisions of Subchapter
A of Chapter 5 (relating to practice and procedure of
Commonwealth agencies) have been violated in the
proceedings before the agency, or that any finding of fact
made by the agency and necessary to support its
adjudication is not supported by substantial evidence.
2 Pa.C.S. § 704 (emphasis added). “Evidence that does not support a conclusion (or
is inconclusive) cannot meet that minimal burden. Accord Ethan Habrial . . . , . . .
at *3 . . . (‘The decision of the Commission must be supported by substantial
evidence. 2 Pa.C.S. § 704. . . .’).” Povacz, 280 A.3d at 1007 (emphasis added).
Petitioner argues:
The [Commission] dismissed [Petitioner’s] [C]omplaint
for failure of [Petitioner] to prove by a preponderance of
the evidence that the installation of the smart meter
constitutes unsafe or unreasonable service under [Section
1501 of the Code]. But how could [Petitioner] prove his
[C]omplaint by a preponderance of the evidence if
virtually all of his credible evidence was excluded? The
exclusions were based on manifestly unreasonable
judgements by the ALJ. They included, but were not
limited to, rejecting letters from [four] doctors[,] as well
as the doctors’ vitae and evidence from [Petitioner’s]
credible witness, William Bathgate [(Bathgate)], while
relying on evidence from PPL[’s] [] witnesses, one of
whom[,] [Dr.] Mark Israel [(Dr. Israel),]) was not
qualified[,] and the other[,] [Dr.] Christopher Davis [(Dr.
Davis),] was not credible. In ruling against all of
[Petitioner’s] Exceptions, the ALJ and the [Commission]
relied on testimony from PPL’s witness [Dr.] Israel, who
was unqualified as an expert in the matter of EHS (by his
own admission)[,] and therefore that testimony was
14
unreliable and his evidence was neither substantial nor
competent.
Petitioner Br. at 62 (internal record citation omitted).
Here, with respect to Petitioner’s evidence, the Commission opined in
its Final Order:
[W]e acknowledge that [Petitioner’s] case included his
competent lay testimony as to the health symptoms he has
experienced historically and since the time an AMI meter
ha[d] been installed at his [n]eighbor’s [a]ddress.
[Petitioner] also presented the expert testimony of
Bathgate, whom the [ALJ] accepted as an expert in
electrical engineering but not as a medical expert, for the
purpose of explaining [] Bathgate’s theories as to how the
RF fields from PPL’s AMI meters will cause harm to
human health. [Petitioner] did not present a qualified
expert to testify on the issue of the cause of his medical
issues in this proceeding. [Petitioner] did, however,
present numerous exhibits, i.e., [Petitioner] Exhibit Nos.
1-10, and 12-27, for the purpose of corroborating his
claims about his health problems and to support his claims
that RF fields from PPL’s AMI meters caused,
exacerbated or will cause or exacerbate his health
problems. Included in these [e]xhibits, among other
things, was a letter from a family medicine practitioner
and three letters from homeopathy practitioners stating
that [Petitioner] has EHS[];[12] however, no actual medical
12
Regarding the letters, the Commission noted:
Even if we were to give the four letters more weight, . . . [PPL’s
expert,] Dr. Israel testified that “[n]one of these letters provide any
useful diagnostic medical information.” Rather, Dr. Israel found
that “they have the appearance of reiterating information that likely
was provided by the patient.” For example, Dr. Israel testified that
the letter from the family medicine practitioner “does not say when
the diagnosis was made, who made it, what medical examination
and medical criteria were involved in the diagnosis, or what course
of treatment, if any, has been provided by medical professionals
since the diagnosis[,] including by the author of the letter.” These
are all important factors related to any diagnosis, because there are
[sic] no established medical criteria for the diagnosis or treatment of
[idiopathic environmental intolerance].
15
records were submitted by [Petitioner] to corroborate his
claims of EHS symptoms.
Final Order at 45 (emphasis added).
Relative to Dr. Israel’s testimony, the Commission expounded:
Dr. Israel[] was the only expert qualified in this
proceeding in medicine and medical research, particularly
regarding RF fields and human health. Dr. Israel testified
to a reasonable degree of medical certainty that there is no
reliable medical basis to conclude that RF fields from the
AMI meters being used by PPL will cause or contribute to
the development of illness or disease. Dr. Israel’s
unequivocal opinion was offered to a reasonable degree of
medical certainty based upon his review of available
scientific studies, research and reports on the impacts of
RF fields on [idiopathic environmental intolerance],
insomnia, and adverse health effects. Dr. Israel’s
testimony was not rebutted or contradicted by any expert
in this proceeding. Dr. Israel’s expert opinion meets
PPL’s required burden of production and constitutes
legally competent evidence to support a finding of fact that
there is no causal connection between RF fields from a
PPL AMI meter and adverse human health effects.
Final Order at 49 (footnote and record citations omitted).
Relative to Dr. Davis’ testimony, the Commission explicated:
Dr. Davis was qualified as an expert witness in the area of
electrical engineering, among other areas. The
[Petitioner’s] Exceptions do not present any reason to
disqualify Dr. Davis or question the credibility of his
testimony in this proceeding. Dr. Davis testified
credibility [sic] that the new AMI meter is not a fire risk
due to inadequate surge protection, as alleged by
[Petitioner] and his expert witness, [] Bathgate. Dr. Davis’
opinion was further bolstered by [Scott] Larson’s
[(Larson)][13] testimony that the new digital meter, as
Final Order at 46 n.17 (record citations omitted).
13
[] Larson holds a Bachelor of Science degree in Electrical
Engineering Technology from the Pennsylvania College of
16
compared to the analog meter, can better withstand
damage from a surge because of the padding materials that
are utilized when building transformers. [] Larson
testified that the padding materials are tested to withstand
up to 6,000 volts. [] Larson testified that the new AMI
meter’s surge protection is not functionally different than
the current meter.
Moreover, Dr. Davis credibility [sic] testified that the
smart meters can actually help people from having a fire
because of the temperature alarms. Regarding such
alarms, [] Larson’s unrebutted testimony showed that the
new AMI meters are equipped with software and
mechanisms that better alert PPL if there is an issue with
overheating. Specifically, there is a heat alarm set within
the meter software program that alerts the [EDC] when the
temperature of the meter hits an established level. []
Larson testified that PPL takes [15]-minute interval
temperature readings from the meter in order to track the
meter’s temperature and identify any current issues or
problematic trends. If PPL detects an issue with the
meter’s temperature, the [EDC] will dispatch a technician
to investigate.
Final Order at 61 (quotation marks and internal citations omitted).
The Commission concluded:
[Petitioner] had the burden of proving that the smart
meters used by PPL [] present a fire safety hazard, and he
did not carry this burden. Rather, PPL [] established that
there is no fire hazard created by the installation of its
smart meters, and [Petitioner] failed to overcome the
evidence presented by [PPL].
Final Order at 61-62. This Court discerns no error in the Commission’s conclusion.
Accordingly, the Commission’s determination was within its administrative
Technology. [] Larson is a Senior Engineer at PPL’s Meter Shop in
Hazleton, Pennsylvania, where he deals with the day-to-day meter
testing operations at the facility. Prior to joining PPL, [] Larson
worked for Lockheed Martin’s field service team as an Electrical
Engineer in charge of fire repair and radar systems.
Final Order at 6.
17
discretion and is supported by substantial evidence in accordance with Section 704
of the Law.
Conclusion
For all of the above reasons, the Commission’s Final Order is
affirmed.14
_________________________________
ANNE E. COVEY, Judge
Judge Fizzano Cannon did not participate in the decision in this matter.
14
Petitioner’s Application to Include Exhibits is dismissed as moot.
18
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Alan Schmukler, :
Petitioner :
:
v. :
:
Pennsylvania Public Utility :
Commission, : No. 1102 C.D. 2019
Respondent :
ORDER
AND NOW, this 6th day of September, 2023, the Pennsylvania Public
Utility Commission’s July 23, 2019 Final Order is AFFIRMED. Alan Schmukler’s
(Petitioner) Application to Include Petitioner’s Original 27 Looseleaf Binder
Exhibits in the Certified Record is DISMISSED as moot.
_________________________________
ANNE E. COVEY, Judge