City of Lancaster v. PA PUC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Lancaster, Borough of :
Carlisle, and Borough of Columbia, :
Petitioners :
:
v. :
:
Pennsylvania Public Utility :
Commission, : No. 251 M.D. 2019
Respondent : Argued: December 9, 2020
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge2
HONORABLE MICHAEL H. WOJCIK, Judge3
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: October 11, 2022
Before this Court is the City of Lancaster’s, the Borough of Carlisle’s,
and the Borough of Columbia’s (collectively, Municipalities) Application for
Summary Relief (Application) regarding Count II of their Petition for Review
(Petition) filed in this Court’s original jurisdiction. After review, this Court grants
the Application.
1
This case was argued before an en banc panel of the Court before January 3, 2022, when
President Judge Emerita Leavitt became a senior judge on the Court, and before January 7, 2022,
when Judge Cohn Jubelirer became President Judge.
2
This matter was assigned to the Opinion writer on June 10, 2022.
3
This case was argued before an en banc panel of the Court that included Judge Crompton.
Judge Crompton’s service with this Court ended on January 2, 2022, before the Court reached a
decision in this matter. Accordingly, Judge Wojcik was substituted for Judge Crompton as a panel
member and considered the matter as submitted on the briefs.
Background
On April 29, 2019, the Municipalities filed the Petition challenging the
validity of Section 59.18 of the Pennsylvania Public Utility Commission’s (PUC)
Regulations (Section 59.18), 52 Pa. Code § 59.18, which, as amended by a Final
Rulemaking Order adopted on May 22, 2014 (Final Rulemaking Order), see Petition,
Ex. G, mandates outdoor gas meter locations but permits a natural gas distribution
company’s (NGDC) consideration of indoor gas meter locations when a gas meter
is, inter alia, in a building within a locally designated historic district. See 52 Pa.
Code § 59.18(a)(1). In Count I of the Petition, the Municipalities challenged Section
59.18 on the basis that, as amended, it violated article I, section 27 of the
Pennsylvania Constitution.4 In Count II of the Petition, the Municipalities
challenged Section 59.18 as an improper delegation of the PUC’s authority to private
parties - NGDCs.
On June 26, 2019, the PUC filed preliminary objections to both Counts
of the Petition (Preliminary Objections). The Court heard oral argument on
December 12, 2019. On February 21, 2020, this Court sustained the PUC’s
Preliminary Objection to Count I of the Petition, but overruled the PUC’s
Preliminary Objection to Count II. See City of Lancaster v. Pa. Pub. Util. Comm’n
(Pa. Cmwlth. No. 251 M.D. 2019, filed Feb. 21, 2020) (February 2020 Opinion).
In its February 2020 Opinion, this Court stated relative to Count II, in
relevant part:
4
Article I, section 27 of the Pennsylvania Constitution states:
The people have a right to clean air, [and] pure water, and to the
preservation of the natural, scenic, historic and esthetic values of the
environment. Pennsylvania’s public natural resources are the
common property of all the people, including generations yet to
come. As trustee of these resources, the Commonwealth shall
conserve and maintain them for the benefit of all the people.
PA. CONST. art. I, § 27.
2
[A]s correctly noted by the Municipalities in their brief
[in opposition to the Preliminary Objections], [Section]
59.18(d) “contains no procedures whatsoever with
respect to the placement of meters on historic
properties. To the contrary, the decision of where to
place a meter on a historic property is left entirely to
the discretion of the utility.” (Municipalities’ Br. [in
Opp’n to Prelim. Objs.] at 24.) Although . . . it is possible
that the owners of the historic buildings may discuss the
location of the meter with the NGDC as part of the notice
process, [Section] 59.18(d) does not appear to have a
formal, adjudicative process. Most notably, contrary to
that argued by the PUC, there is no formal application
procedure embedded within [Section] 59.18. Further, in
light of the plain language of [Section] 59.18(d), an NGDC
is not required to set forth the basis or reasons for its
determination as to whether a meter should be located
inside or outside a structure.
February 2020 Op. at 24-25 (emphasis added).
On March 27, 2020, the PUC filed its answer to the Petition. On
September 6, 2020, the Municipalities filed the Application seeking summary relief
as to remaining Count II.
Discussion
Initially,
Pennsylvania Rule of Appellate Procedure 1532(b) allows
the Court to enter judgment at any time after the filing of
a petition for review where the applicant’s right to relief is
clear. P[a].R.A.P. 1532(b). Summary relief is reserved
for disputes that are legal rather than factual, Rivera v.
P[a.] State Police, 255 A.3d 677, 681 (Pa. Cmwlth. 2021),
and we resolve “all doubts as to the existence of disputed
material fact against the moving party.” Id. (quoting
Marcellus Shale Coal[.] v. Dep[’]t of Env[’]t Prot[.], 216
A.3d 448, 458 (Pa. Cmwlth. 2019)). An application for
summary relief is appropriate where a party lodges a
facial challenge to the constitutionality of a statute.
3
McLinko v. Dep’t of State, 270 A.3d 1243, 1250 (Pa. Cmwlth.), aff’d in part, rev’d
in part on other grounds, 279 A.3d 539 (Pa. 2022) (footnote omitted; emphasis
added). “An application for summary relief may be granted if a party’s right to
judgment is clear and no material issues of fact are in dispute.” Jubelirer v. Rendell,
953 A.2d 514, 521 (Pa. 2008) (quoting Calloway v. Pa. Bd. of Prob. & Parole, 857
A.2d 218, 220 n.3 (Pa. Cmwlth. 2004)).
The Municipalities first contend that since no material facts are in
dispute, this Court may grant summary relief in a facial challenge to Section 59.18.
Specifically, the Municipalities assert that “this Court need only consider the
wording of Section 59.18,” Municipalities Br. at 12, to determine “whether the PUC
did so in a way that constitutes an improper delegation to NGDCs[, which] is the
only question that remains before this Court.” Municipalities Reply Br. at 4.
Because the Municipalities challenge whether Section 59.18 itself is an improper
delegation of authority, which raises a legal rather than factual question, the
Municipalities’ Application is appropriate.
The Municipalities next argue that they are entitled to judgment as a
matter of law because Section 59.18 improperly delegates authority to NGDCs in
contravention of article II, section 1 of the Pennsylvania Constitution, which
provides: “The legislative power of this Commonwealth shall be vested in a General
Assembly, which shall consist of a Senate and a House of Representatives.” PA.
CONST. art. II, § 1. Specifically, the Municipalities contend that Section 59.18 lacks
adequate standards and/or procedures to guide NGDCs in determining where to
place a meter at a property located in a historic district,5 and to prevent arbitrary
NGDC decisions mandating meter relocations.
5
The Municipalities assert, and it is undisputed, that they have each established historic
districts pursuant to what is commonly known as the Pennsylvania Historic District Act, Act of
June 13, 1961, P.L. 282, No. 167, as amended, 53 P.S. §§ 8001-8006, and that the Municipalities,
4
Section 59.18 provides:
(a) General requirements for meter and regulator
location.
(1) Unless otherwise allowed or required in this
section, meters and regulators must be located
outside and aboveground.
(2) Except in the case of an emergency, a utility shall
provide written notice to a utility customer by first class
mail or by personal delivery at least 30 days prior to
relocating and subsequently installing a meter or
regulator outside the customer’s building. . . .
(3) The written notice must inform the customer and
building owner of the equipment that the utility
proposes to relocate, the planned new location and how
to contact the utility to provide supplemental
information that the utility may not have, such as the
building’s historic status. The written notice must
include contact information for the [PUC’s] Bureau of
Consumer Services.
....
(5) When selecting a meter or service regulator location,
a utility shall consider potential damage by outside
forces.
(6) The meter location must accommodate access for
meter reading, inspection, repairs, testing, changing and
operation of the gas shut-off valve.
(7) When feasible and practical to do so, the meter
location must accommodate the installation of the
service line in a straight line perpendicular to the main.
(8) Meters and service regulators may not be installed
in the following locations:
including their historic districts, are served by an NGDC operating pursuant to the PUC’s rules
and regulations.
5
(i) Beneath or in front of windows or other building
openings that may directly obstruct emergency fire
exits.
(ii) Under interior stairways.
(iii) Under exterior stairways, unless an alternate
means of egress exists and the meter and service
regulator are installed in a well-vented location under
stairs constructed of noncombustible material.
(iv) A crawl space.
(v) Near building air intakes under local or [s]tate
building codes.
(vi) In contact with soil or other potentially corrosive
materials.
(9) Unless caused by a customer’s or building owner’s
violation of applicable gas safety or tariff rules, a utility
shall pay the costs of relocating a meter or regulator
when the relocation is performed to meet utility or
[PUC] safety requirements.
(10) Unless caused by a customer’s or building owner’s
violation of applicable gas safety or tariff rules, a utility
shall pay the cost of extending customer-owned
facilities to the new meter or regulator location when
the relocation is performed to meet utility or [PUC]
safety requirements.
(11) A customer or building owner requesting that a
meter or regulator be moved shall pay the costs
associated with relocation when the meter and regulator
are currently situated in a suitable location under [s]tate
and [f]ederal regulations.
(12) Utilities shall address meter, regulator and service
line location regulations in their tariffs.
....
(d) Inside meter locations.
(1) Inside meter locations shall be considered only
when:
6
(i) The service line pressure is less than 10 [pounds
per square inch gauge (]psig[)].
(ii) A meter is located in a building that meets one
of the following criteria:
(A) A building is listed in the National Register of
Historic Places or the customer or building owner
notifies the utility that the building is eligible to be
listed in the National Register of Historic Places
and the eligibility can be readily confirmed by the
utility.
(B) A building is located within a historic district
that is listed in the National Register of Historic
Places or the customer or building owner notifies
the utility that the historic district is eligible to be
listed in the National Register of Historic Places
and the eligibility can be readily confirmed by the
utility.
(C) A building has been designated as historic
under the [A]ct of June 13, 1961 (P.L. 282, No.
167[, as amended,]) (53 P.S. §§ 8001-[]8006),
known as the Pennsylvania Historic District Act,
the Pennsylvania Municipalities Planning Code
([Act of July 31, 1968, P.L. 805, as amended,] 53
P.S. §§ 10101-[]11202), or a municipal home rule
charter.
(D) A building is located within a locally
designated historic district or is eligible for the
listing, or a building is individually designated
under a local ordinance as a historic landmark
or is eligible for the listing.
(iii) Protection from ambient temperatures is
necessary to avoid meter freeze-ups.
(iv) A utility determines that a meter is subject to a
high risk of vandalism based on the utility’s prior
experience.
(v) A utility determines that an outside meter location
is neither feasible nor practical.
7
(2) Except for low pressure systems with service line
pressure less than 10 psig, regulators must be located
outside when a meter is located inside.
(3) Installed inside meters must be attached to an
operable outside shut off valve.
(4) Meters installed within a building must be located in
a ventilated place not less than 3 feet (914 millimeters)
from a source of ignition or source of heat which may
damage the meter.
52 Pa. Code § 59.18 (a)(1)-(3), (5)-(12), (d) (bold emphasis added).
This Court observed in its February 2020 Opinion:
[T]he Final Rulemaking Order states that “the utility will
continue to retain discretion in applying this
[R]egulation,” [Petition, Ex. G, Final Rulemaking Order]
at 1, admits that “the [R]egulation does contain
provisions that delegate discretion to the utility in
making a determination with respect to locating an outside
meter,” id. at 26, and confirms that “due to [a utility’s]
public safety obligations,” “it is necessary that . . . the
utility be allowed to make the final decision.” Id.February 2020 Op. at 26 (bold and underline emphasis added).
In Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 161 A.3d 827 (Pa. 2017), the Pennsylvania Supreme Court emphasized:
[W]hen the General Assembly empowers some other
branch or body to act, our jurisprudence requires “that the
basic policy choices involved in ‘legislative power’
actually be made by the [l]egislature as constitutionally
mandated.” Tosto v. Pa. Nursing Home Loan Agency, . . .
331 A.2d 198, 202 ([Pa.] 1975). This constraint serves
two purposes. First, it ensures that duly authorized and
politically responsible officials make all of the necessary
policy decisions, as is their mandate per the electorate.
And second, it seeks to protect against the arbitrary
exercise of unnecessary and uncontrolled discretionary
power.
....
8
Although [the Pennsylvania] Constitution generally
forbids the delegation of “legislative power,” it
nonetheless permits the General Assembly, in some
instances, to assign the authority and discretion to execute
or administer a law. Blackwell[ v. State Ethics Comm’n],
567 A.2d [630,] 637 [(Pa. 1989)]. When the General
Assembly does so, the Constitution imposes two
fundamental limitations. First, as mentioned, the
General Assembly must make “the basic policy
choices,” and second, the legislation must include
“adequate standards which will guide and restrain the
exercise of the delegated administrative functions.”
Pennsylvanians Against Gambling Expansion Fund, Inc.
v. Commonwealth, . . . 877 A.2d 383, 418 ([Pa.] 2005);
State Bd. of Chiropractic Exam’rs [v. Life Fellowship of
Pa.], 272 A.2d [478,] 481 [(Pa. 1971)] (quoting Chartiers
Valley Joint Sch. v. C[n]ty. Bd. of Sch. Dirs. of Allegheny
C[n]ty., . . . 211 A.2d 487, 492-93 (Pa. 1965)).
Id. at 833-34 (citations omitted; emphasis added).6 “In determining whether
adequate standards have been established, we look to the entire [statute]; ‘we are not
6
In Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2019), this
Court summarized:
In Protz [], our Supreme Court applied these standards to conclude
that Section 306(a.2) [of the Workers’ Compensation Act (Act), Act
of June 2, 1915, P.L. 736, as amended, added by the Act of June 24,
1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by the Act of
October 24, 2018, P.L. 714, No. 111,] was an impermissible
delegation of the General Assembly’s legislative authority to the
[American Medical Association (]AMA[)] because that provision
did not include any standards or basic policy choices to restrain the
AMA’s future enactment of the [American Medical Association
Guides to the Evaluation of Permanent Impairment (]Guides[)],
which would then become the law by which [impairment rating
evaluations] would be performed. Id. at 835-36. This left the AMA
with the ability to “revise the Guides once every ten years or once
every ten weeks,” which “gave the AMA de facto, unfettered
control over a formula that ultimately will determine whether a
claimant’s partial[]disability benefits will cease after 500 weeks.”
Id. at 835-36 (emphasis added). Because Section 306(a.2) [of the
Act] failed to meet even the basic requirements for a permissible
delegation, [our] Supreme Court did not address the question of
9
limited to the mere letter of the law, but must look to the underlying purpose of the
statute and its reasonable effect.’” Gambling Expansion Fund, 877 A.2d at 418
(quoting William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269,
293 (Pa. 1975)).
The instant matter involves a Commonwealth agency’s delegation of
its legislatively granted authority by way of a regulation.7 Nonetheless, this Court
addressed an analogous circumstance in City of Williamsport Bureau of Codes v.
DeRaffele, 170 A.3d 1270 (Pa. Cmwlth. 2017). The City of Williamsport Court
explained:
[I]n the instant matter, Williamsport would have us
interpret Section 11018.13 of the Third Class City Code[8]
[(11 Pa.C.S. § 11018.13) (Section 11018.13)] in a manner
that would effectively grant the International Code
Council unfettered authority to create a new controlling
Maintenance Code for the residents of Williamsport. We
whether the General Assembly’s delegation to a “private entity”
could ever validly occur. Although it cited precedent raising
concerns about such delegations, including the lack of political
accountability of a private entity, it also cited other precedent that
did not rule out the constitutional propriety of those delegations.
Id. at 314; see also Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1228 (Pa.
Cmwlth. 2018) (wherein “[t]he General Assembly delegated authority to [a third-party trade
association] without providing any of the safeguards required to conform that delegation of
authority to constitutional strictures[]”).
7
In fact, long before Protz, this Court addressed a PUC regulation governing the use of
natural gas outdoor lighting that lacked necessary standards - specifically, the applicable
regulations did not define “residential customer” but deferred to the utility’s own classification
(“residential” versus “commercial”). This Court concluded:
Basing such a decision solely on a utility’s billing classification
cannot, in our view, be proper. In effect, the [PUC] would be
delegating its authority to answer certain legal questions to a public
utility, thereby allowing the company sought to be regulated to
assume the role of regulator. While a utility’s billing classification
may have some relevance in the matter, it is by no means conclusive.
Woodland Rd. Ass’n v. Pa. Pub. Util. Comm’n, 487 A.2d 1030, 1032 (Pa. Cmwlth. 1985).
8
11 Pa.C.S. §§ 10101-14702.
10
decline to do so. We acknowledge that the issue of
delegation is made slightly more complicated here because
the General Assembly has already delegated authority to
local governments like Williamsport to enact property
maintenance codes. See [Section 141A04(a) of the
Uniform Construction Code,] 11 Pa.C.S. § 141A04(a)
(“[n]otwithstanding the primacy of the Uniform
Construction Code, a city may enact a property
maintenance ordinance, including a standard or nationally
recognized property maintenance code or a change or
variation”). Williamsport’s reading of Section
11018.13, however, results in the delegation of
legislative authority, originating in the General
Assembly, passing through local governments, and
ending in the hands of the International Code Council.
The General Assembly cannot grant local governments
more authority than the General Assembly possesses.
Such a scheme is analogous to the legislative delegation
that the Supreme Court addressed in Protz and,
therefore, cannot pass constitutional muster.
Id. at 1274-75 (emphasis added); see also Phantom Fireworks Showrooms, LLC v.
Wolf, 198 A.3d 1205 (Pa. Cmwlth. 2018).
Similarly, in 425 Property Association of Alpha Chi Rho, Inc. v. State
College Borough Zoning Hearing Board, 223 A.3d 300 (Pa. Cmwlth. 2019), this
Court stated:
As our Supreme Court has held, a permissible delegation
of legislative authority must include concrete measures to
channel the delegatee’s discretion and safeguards to
protect against arbitrary, ad hoc decision making, such as
a requirement that the delegate[e] hold hearings, allow for
public notice and comment, or explain the grounds for its
decision in a reasoned opinion subject to judicial review.
[Protz, 161 A.3d] at 835. This Court has held that the non-
delegation principle applies equally to a municipality’s
ability to delegate administrative functions to a third party.
See City of Williamsport . . . .
....
11
Here, like Protz, the [z]oning [o]rdinance
unconstitutionally delegates authority to Penn State
[University (Penn State)] to decide whether a property
may be used as a “Fraternity House” under the [z]oning
[o]rdinance. The [z]oning [o]rdinance provides that a
“Fraternity House” is a student living arrangement where
residents are members of a Penn State “recognized
fraternity or sorority” and that “recognition shall be
determined by [Penn State] through its procedures as
may be established from time to time.” [State College
Borough] Zoning Ordinance, § 201 . . . (emphasis added).
Similar to Protz, the [z]oning [o]rdinance provides none
of the necessary safeguards to “guide and restrain the
exercise” of the administrative functions delegated to Penn
State. Protz, 161 A.3d at 834. Specifically, the [z]oning
[o]rdinance neither outlines the policy preferences
favored by [State College] Borough with respect to
fraternity recognition, nor provides standards to guide
Penn State in determining its recognition of fraternities as
it relates to the [z]oning [o]rdinance. Under the [z]oning
[o]rdinance, Penn State has sole and unbridled discretion
regarding the recognition of fraternities and may revoke
recognition at will. There are also no procedural
mechanisms in the [z]oning [o]rdinance to protect against
Penn State exercising “administrative arbitrariness and
caprice.” Id. at 836.
425 Prop. Ass’n, 223 A.3d at 313 n.9 (italic emphasis added).
This Court’s reasoning expressed in 425 Property
Association was consistent with our Supreme Court’s
somewhat analogous decision in . . . Gambling Expansion
Fund . . . . In Gambling Expansion Fund, a statutory
provision gave the Pennsylvania Gaming Control Board
[Gaming Board] authority to ignore local zoning
ordinances in deciding where to locate slot machine
casinos. The [Gambling Expansion Fund] Court
concluded the provision constituted an unconstitutional
delegation of legislative authority because it failed to
impose “definite standards, policies and limitations to
guide [the Gaming Board’s] decision[ ]making with regard
to zoning issues.” Id. at 418. The Gambling Expansion
Fund Court contrasted the permissible delegation of
authority at issue in William Penn Parking Garage, . . .
which assigned to courts the determination of whether a
12
tax was unreasonable. That delegation of authority was
appropriately limited, in that courts must explain their
decisions in reasoned opinions that are subject to
precedents and to appellate review; such safeguards
protect from arbitrary, ad hoc decisions and uncontrolled
discretion. Gambling Expansion Fund, 877 A.2d at 418
(citing William Penn Parking Garage, 346 A.2d at 291-
92).
Southpointe Golf Club, Inc. v. Bd. of Supervisors of Cecil Twp., 250 A.3d 495, 505
(Pa. Cmwlth. 2021).
In response to the Municipalities’ assertion that Section 59.18
improperly vests absolute discretion in NGDCs with respect to gas meter locations
in properties in historic districts and that Section 59.18 contains no standards or
procedures to curtail or affect review of that discretion, the PUC claims:
Section 59.18 . . . does not vest absolute discretion in
NGDCs with respect to the location of natural gas
meters. Section 59.18 clearly states that an NGDC must
consider the location of a natural gas meter inside a
building in a historic district. If the NGDC determines
that it cannot accommodate a natural gas meter inside
the building, the aggrieved party can ultimately have the
[PUC] review this determination pursuant to Section 701
of the Pennsylvania Public Utility Code [(Code)], 66
Pa.C.S. § 701, and Section 5.21 of the [PUC]’s
Regulations, 52 Pa. Code § 5.21.
PUC Br. at 17-18 (emphasis added).
The PUC further rejoins:
Section 59.18 simply directs NGDCs to consider the
interior placement of natural gas meters in historic districts
and if the NGDC personnel decides it cannot safely
keep a natural gas meter inside an affected building[,]
that decision is ultimately reviewable by the [PUC], based
on record evidence provided by the parties to a complaint.
PUC Br. at 22 (emphasis added).
13
The PUC interprets Section 59.18 as imposing an affirmative duty on
an NGDC to attempt to accommodate an indoor meter. However, Section
59.18(d)(1) provides: “Inside meter locations shall be considered only when[,]” inter
alia, the meter is in a building in a historic district. 52 Pa. Code § 59.18(d)(1).
Section 59.18 does not guide the NGDC, and certainly does not create a presumption
that a meter must remain inside a building unless the NGDC “cannot accommodate”
it. PUC Br. at 18.
Similarly, the PUC interprets Section 59.18 as imposing a fictional
burden on the NGDCs, which in no manner is supported by the Regulation, to
consider the interior placement of natural gas meters in historic districts.9 However,
Section 59.18 imposes no burden on the NGDC, no presumption of an indoor meter
location, and no requirement that an NGDC attempt to maintain an indoor meter
location unless it “cannot safely” do so.10 PUC Br. at 22.
9
Like the PUC, the Dissent interprets Section 59.18 to require that an NGDC attempt to
maintain an indoor meter location in a historic building. See City of Lancaster v. Pa. Pub. Util.
Comm’n, ___ A.3d ___ (Pa. Cmwlth. No. 251 M.D. 2019, filed Oct. 11, 2022) (McCullough, J.,
dissenting), slip op. at 10 (“[i]f the NGDC determines that it cannot accommodate a natural
gas meter inside the building, an aggrieved party can ultimately have the [PUC] review this
determination pursuant to [S]ection 701 of the Code and [S]ection 5.21(a) of the [PUC’s]
[R]egulations”) (emphasis added); see also id., ___A.3d at ___, dissenting slip op. at 11 (“if the
NGDC personnel decides it cannot safely keep a natural gas meter inside an affected building,
that decision is ultimately reviewable by the [PUC] based on record evidence provided by the
parties to a complaint”) (emphasis added); see also id., ___A.3d at ___, dissenting slip op. at 17
(“[Section] 59.18 requires the NGDCs to give individualized consideration to each property, based
on customer feedback (regarding preservation of historical aesthetics) and safety - i.e., place [the
meter] indoors if it can be done safely, feasibly[,] and practically . . . .”) (emphasis added).
10
Section 59.18 merely provides a customer or building owner the opportunity to provide
information to the NGDC when notified that the NGDC intends to relocate a meter. It does not
require the NGDC to actually consider such information. In fact, the assumption that an NGDC’s
decisions will be given “individualized consideration . . . based on customer feedback . . . and
safety” invites an arbitrary and capricious exercise of the NGDC’s delegated power. City of
Lancaster, ___A.3d at ___, dissenting slip op. at 17. Even if, as the Dissent contends, such
decisions must be made on individual considerations based on specific building characteristics,
such does not eliminate the necessity for standards under which the NGDCs should exercise
14
Rather, a decision regarding whether a meter in a building located in a
historic district is to be moved to an outdoor location is at the NGDC’s complete
discretion, with absolutely no guidance in Section 59.18 and no “safeguards to
protect against arbitrary, ad hoc decision making[.]”11 425 Prop. Ass’n, 223 A.3d at
discretion “to protect against arbitrary, ad hoc decision making[.]” 425 Prop. Ass’n, 223 A.3d at
313 n.9.
11
The Dissent states:
While it does not have specific guidelines pertaining only to historic
buildings, [Section] 59.18 provides exactly when and how meters
can safely be placed inside - for historic and non-historic buildings.
For example, pursuant to [Section] 59.18 -
• A[n] NGDC cannot install a meter inside if it cannot be
attached to an operable outside shut off valve. 52 Pa. Code
§ 59.18(d)(3).
• A[n] NGDC cannot place or leave a gas meter inside if
the service line pressure is greater than 10 psig. 52 Pa. Code
§ 59.18(d)(1)(i).
• NGDCs must make sure that the gas meter is in a well-
vented area, not under a stairwell, or in a crawl space, and
the placement must “accommodate access for meter reading,
inspection, repairs, testing, changing and operation of the
gas shut-off valve.” 52 Pa. Code § 59.18(a)(6), (8).
• Meters installed within a building must be located in a
ventilated place not less than 3 feet (914 millimeters) from a
source of ignition or source of heat which may damage the
meter. 52 Pa. Code § 59.18(d)(4).
These are specific guidelines that restrict the NGDCs’ decision
making process when “considering” whether to place a gas meter
inside a property in every area, including a historic district.
City of Lancaster, ___A.3d at ___, dissenting slip op. at 12-13 (italics and underline emphasis
added; bold emphasis omitted).
The Dissent has erroneously combined Section 59.18(a) and (d), and mischaracterized the
Regulation’s clear language. First, Section 59.18(a) states the general rule that all meters are to be
located outside, unless this section allows otherwise. See 52 Pa. Code § 59.18(a)(1). It also
provides that meters must be accessible and lists six locations where meters may not be installed.
See 52 Pa. Code § 59.18(a)(6) and (8). Section 59.18(a) contains no language as to whether an
15
313 n.9. Like the statutory section at issue in Gambling Expansion Fund, Section
59.18 “does not provide [NGDCs] with definite standards, policies[,] and limitations
to guide its decision[ ]making with regard to [meter locations at buildings in historic
districts].”12 Gambling Expansion Fund, 877 A.2d at 418.
existing meter in a historic building must be relocated. Second, Section 59.18(d) is entitled “Inside
meter locations” and provides that “[i]nside meter locations shall be considered only when” and
lists five independent criteria that may permit a meter to be located inside a building. 52 Pa.
Code § 59.18(d). Each one of the criteria is, in and of itself, a sufficient justification for an NGDC
to consider an inside meter location.
The Dissent confuses the relevant regulatory language in Section 59.18(a) governing
installation of meters as guiding an NGDC’s decision over whether an existing meter in a historic
building must be relocated. Section 59.18(a) mandates that, absent an exception (as set forth in
Section 59.18(d)), a meter must be located outside. Section 59.18(a) addresses outdoor meter
installation, not considerations governing whether an existing meter, subject to an exception to
the outdoor requirement, must be relocated.
Further, the Dissent misinterprets Section 59.18(d)(1)(i) as supporting its declaration that
Section 59.18 provides “exactly when and how meters can safely be placed inside – for historic
and non-historic buildings.” City of Lancaster, ___A.3d at ___, dissenting slip op. at 12 (emphasis
omitted). Section 59.18(d)(1)(i) is one independent criterion permitting consideration of an
indoor meter location – nonetheless, the Dissent misconstrues Section 59.18(d)(1)(i) as its
converse – prohibiting “[a]n NGDC [from] plac[ing] or leav[ing] a gas meter inside if the service
line pressure is greater than 10 psig.” City of Lancaster, ___A.3d at ___, dissenting slip op. at 13
(italic emphasis added; bold emphasis omitted). Section 59.18(d)(1)(i) does not provide “exactly
when and how meters can safely be placed inside” a historic building since a meter location in a
historic building is simply one of the other four, independent bases under Section 59.18(d)(1) for
permitting a meter to remain indoors. City of Lancaster, ___A.3d at ___, dissenting slip op. at 12
(emphasis omitted).
The Dissent suggests that “specific guidelines that restrict the NGDCs’ decision making
process when ‘considering’ whether to place a gas meter inside a building[,]” City of Lancaster,
___A.3d at ___, dissenting slip op. at 13 (emphasis added), are “very clear and specific[,]” and
govern an NGDC’s decision on whether to relocate a historic building’s existing meter. Id. at
14. However, the Dissent also contends that “even if [the purported guidelines] were not [clear
and specific], Pennsylvania’s non[-]delegation doctrine ‘does not require that all of the details
needed to administer a law be precisely or separately enumerated in the statute.’” Id. (quoting Pa.
Builders Ass’n v. Dep’t of Lab. & Indus., 4 A.3d 215, 225 (Pa. Cmwlth. 2010)). Contrary to the
Dissent’s characterization, the instant matter does not involve unclear or nonspecific guidelines.
Simply put, there are no standards guiding an NGDC’s decision regarding whether to relocate
a historic building’s indoor meter to an outdoor location, where Section 59.18 provides historic
buildings a specific exception to the general requirement that meters must be located outside.
12
The Dissent argues it is impossible to establish standards to guide NGDCs’ decisions on
historic building meter relocation. It further claims, without citation to the Municipalities’ Briefs,
16
Absent an actual burden and/or any “safeguards to protect against
arbitrary, ad hoc decision making,” NGDCs have free, unconstrained authority to
order meter relocations in historic districts. 425 Prop. Ass’n, 223 A.3d at 313 n.9.
The delegation of such authority absent basic policy choices and adequate standards
cannot be sustained. See also Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d
306, 314 (Pa. Cmwlth. 2019) (“[A] law must include ‘procedural mechanisms that
serve to limit or prevent the arbitrary and capricious exercise of the delegated
power.’”) (quoting Protz, 161 A.3d at 834).
This Court finds unconvincing the PUC’s assertions that the
Municipalities’ concerns regarding an NGDC’s absolute discretion are adequately
addressed by Section 59.18, by the right to PUC review permitted by Section 701 of
that the Municipalities complain that NGDCs’ considerations do not include a historic building’s
aesthetics, see City of Lancaster, ___A.3d at ___, dissenting slip op. at 16, noting:
It . . . becomes a question of how the [PUC] could ever enact
regulations that would cover every aesthetic concern in and of itself.
Due to NGDCs’ public safety obligations and the fact that it is
impossible for the [PUC] to envision every individual circumstance,
. . . it is necessary that the utilities be allowed to make the final
decision as to whether a meter should be located inside or outside a
structure in a historic district on a case-by-case basis to ensure the
safety of the public and its personnel.
City of Lancaster, ___A.3d at ___, dissenting slip op. at 16-17. This Court cannot identify any
statement in the Municipalities’ Brief or Reply Brief specifically raising an NGDC’s failure to
consider aesthetics. Whether an NGDC should make the final decision on meter location is a
separate question from whether the PUC was required to have included standards and guidelines
in Section 59.18 to prevent the NGDCs’ “arbitrary, ad hoc decision making[.]” 425 Prop. Ass’n,
223 A.3d at 313 n.9.
17
the Code,13 and by Section 5.21(a) of the PUC’s Regulations,14 as informed by
Section 1501 of the Code, 66 Pa.C.S. § 1501.
In its February 2020 Opinion, this Court observed:
Although . . . it is possible that the owners of the historic
buildings may discuss the location of the meter with the
NGDC as part of the notice process, [Section ]59.18(d)
does not appear to have a formal, adjudicative process.
Most notably, contrary to that argued by the PUC, there is
no formal application procedure embedded within
[Section ]59.18. Further, in light of the plain language of
[Section ]59.18(d), an NGDC is not required to set forth
the basis or reasons for its determination as to whether a
meter should be located inside or outside a structure.
February 2020 Op. at 25.
The PUC reasons that Sections 701 and 1501 of the Code, and Section
5.21 of the PUC’s Regulations, provide an adequate review process. Notably,
Section 701 of the Code permits any person, corporation, or municipal corporation
13
66 Pa.C.S. § 701. Section 701 of the Code provides, in relevant part:
The [PUC], or any person, corporation, or municipal corporation
having an interest in the subject matter, . . . 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.
Id.
14
52 Pa. Code § 5.21(a). Section 5.21(a) of the PUC’s Regulations states:
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].
Id.18
to challenge a public utility’s actions. Similarly, Section 5.21(a) of the PUC’s
Regulations permits a complainant to file a formal complaint with the PUC objecting
to violations of law by a person under the PUC’s jurisdiction.15
To find purported standards under Section 59.18 for PUC consideration
in such hearings, the PUC relies on Section 1501 of the Code, which sets forth the
conditions under which a utility provides its service. Specifically, Section 1501 of
the Code provides:
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. Such service also
shall be reasonably continuous and without unreasonable
interruptions or delay. Such service and facilities shall be
in conformity with the regulations and orders of the
15
The PUC cites Povacz v. Pennsylvania Public Utility Commission, 241 A.3d 481 (Pa.
Cmwlth. 2020) (en banc), aff’d in part, rev’d in part, ___ A.3d ___ (Pa. Nos. 34-45 MAP 2021,
filed Aug. 16, 2022), to support its assertion that the PUC “has . . . authority . . . over the NGDCs
that are placing natural gas meters in historic districts.” PUC Br. at 19. Povacz involved a
challenge by utility customers to the PUC’s denials of the customers’ requests to be exempted
from smart meter installation in or on their homes, based on their health concerns related to
radiofrequency emissions exposure. The relevant statute mandated that an electric distribution
company “shall furnish smart meter technology . . . in accordance with a depreciation schedule not
to exceed 15 years.” Section 2807(f)(2)(iii) of the Code, 66 Pa.C.S. § 2807(f)(2)(iii). However,
that Section of the Code did not provide a review process for challenging the utility’s smart meter
placement. Nonetheless, this Court found a right to challenge under Sections 701, 1501, and 2205
of the Code, 66 Pa.C.S. §§ 701, 1501, 2205. The PUC claims that like the consumers in Povacz,
“the Municipalities are entitled to contest the NGDC’s decision on the placement of natural gas
meters in historic districts before the [PUC] and request[] an accommodation pursuant to Sections
701, 1501[,] and 2205 of the Code.” PUC Br. at 19.
In Povacz, there was no unlawful delegation challenge. Unfettered and unguided utility
discretion was not at issue therein. The consumers did not challenge a PUC regulation but, rather,
the interpretation of an Act of the General Assembly. This Court determined that the relevant
statutory provision could be interpreted to address the consumers’ concerns and remanded the case
to the PUC to determine appropriate accommodations based on the facts before it.
19
[PUC]. Subject to the provisions of this part and the
[R]egulations or orders of the [PUC], every public utility
may have reasonable rules and regulations governing the
conditions under which it shall be required to render
service. Any public utility service being furnished or
rendered by a municipal corporation beyond its corporate
limits shall be subject to regulation and control by the
[PUC] as to service and extensions, with the same force
and in like manner as if such service were rendered by a
public utility. The [PUC] shall have sole and exclusive
jurisdiction to promulgate rules and regulations for the
allocation of natural or artificial gas supply by a public
utility.
66 Pa.C.S. § 1501 (emphasis added). According to the PUC, Section 1501 of the
Code “provides the governing standard for all [PUC] determinations concerning the
conditions under which a utility provides its service.” PUC Br. at 23.
The PUC explains:
Once before the [PUC] for review, the [PUC] reviews the
NGDC’s meter location decision pursuant to [S]ection
1501 of the Code . . . to determine whether the NGDC’s
natural gas meter location decision furnishes and
maintains adequate, efficient, safe, and reasonable service
and facilities that are necessary and proper for the
accommodation, convenience, and safety of the NGDC’s
patrons, employees, and the public.
PUC Br. at 18. However, Section 1501 of the Code’s general statement simply
describes a public utility’s duty to the public. It does not prescribe the manner in
which an NGDC must exercise the unfettered, PUC-granted discretion regarding
whether to order an existing interior gas meter in a historic district be moved to an
exterior location, nor does it provide “concrete measures to channel the delegatee’s
discretion and safeguards to protect against arbitrary, ad hoc decision making[.]”16
425 Prop. Ass’n, 223 A.3d at 313 n.9.
16
The PUC implies that NGDC safety obligations under Section 1501 of the Code are
adequate standards under which NGDCs may render a decision regarding meter locations for
buildings in historic districts. This Court does not agree. In Commonwealth v. Cherney, 312 A.2d
20Notwithstanding a right to appeal under Sections 701 and 220517 of the
Code, and Section 5.21(a) of the PUC’s Regulations, absent any standards in Section
38 (Pa. 1973), the Pennsylvania Supreme Court reviewed a trial court’s ruling holding that a
statutory provision, stating in relevant part, “[t]he Secretary of Highways [(Secretary)] may, after
due investigation, establish any speed limit on [s]tate highways where traffic conditions or other
conditions of the highway make it safe to operate motor vehicles at the speeds other than as
provided by this act[,]” was an unconstitutional delegation of legislative authority. Id. at 40. The
Pennsylvania Supreme Court disagreed. Notably, the Cherney Court based its decision, in part,
on the fact that the legislature had provided sufficient guidelines which the Secretary could
consult, i.e., that “[t]he legislature specifically established speed limits for types of highways
in given areas.” Cherney, 312 A.2d at 41 n.8 (emphasis added).
The Cherney Court explained:
It is clear the legislature was attempting to establish a law which
would provide speed limits to promote safety on the highways.
There can be no other meaning intended but that the [S]ecretary
must determine, on the basis of the particular characteristics of a
highway and his expert knowledge in the field of transportation,
whether raising a speed limit on certain highways will promote
safety and advance the steady flow of traffic. Moreover, in
applying this guideline, the [S]ecretary need only look to [the
relevant statutory provisions establishing speed limits for types
of highways in given areas] to seek legislative guidance on what
the legislature believes to be safe speeds in certain rural and
urban areas, and [another subpart to that same statutory
provision] provides many factors which the legislature deems of
importance. In light of the clear legislative purpose of safety, and
the factors enumerated in the other sections of the [c]ode, there
is no question in our view, that the first paragraph is a valid grant of
authority.
Id. at 41 (emphasis added; footnotes omitted). Here, in contrast, there are no other “factors
enumerated in other sections of the [Code],” id., or other similar provisions providing standards
relevant to gas meter placement at buildings in historic districts, i.e., “concrete measures to channel
the delegatee’s discretion and safeguards to protect against arbitrary, ad hoc decision making[.]”
425 Prop. Ass’n, 223 A.3d at 313 n.9.
17
Section 2205 of the Code specifies, in relevant part:
(a) Integrity of distribution system.
(1) Each [NGDC] shall maintain the integrity of its
distribution system . . . in a manner sufficient to provide safe
and reliable service to all retail gas customers connected to
21
59.18 for the NGDCs to follow, this Court cannot discern how the PUC is able to
review an NGDC’s decision regarding whether an interior gas meter in a historic
building must be relocated to the exterior simply based on a public utility’s general
duties to the public under Section 1501 of the Code. Section 59.18 does not prescribe
the manner in which an NGDC must exercise PUC-granted discretion regarding
whether to order an existing interior gas meter in a historic district be relocated to
an exterior location, and cannot serve as the PUC’s standard to prevent “arbitrary,
ad hoc decision making.”18 425 Prop. Ass’n, 223 A.3d at 313 n.9.
its system consistent with this title and the [PUC’s] orders or
[R]egulations.
....
(b) Installation and improvement of facilities.
....
(3) Disputes concerning facilities shall be subject to the
jurisdiction of the [PUC] and may be initiated by the filing
of a complaint under [S]ection 701 [of the Code] (relating to
complaints) by the [PUC] or any interested party.
66 Pa.C.S. § 2205 (a)(1), (b)(3).
18
The Municipalities aptly note in their Reply Brief:
[The PUC] states that “the standard of review the [PUC] would
apply would be made pursuant to Section 1501 of the Code . . . and
the NGDC would have to provide substantial competent evidence
demonstrating its rationale for why it placed the meter where it did.”
[PUC Brief in Opp’n to Prelim. Objs. at 21.] However, there are no
standards, period, under [Section] 59.18, Section 1501 of the . . .
Code, or elsewhere in the PUC’s [R]egulations, that provide any
guidelines for determining where to place meters on historic
properties.
The PUC treats [Section] 59.18 as if it contains standards and
procedures to be applied. It does not. The PUC argues that other
sections of the . . . Code or PUC [R]egulations fill the gaps left by
[Section] 59.18. They do not.
Id. at 11-12 (footnotes omitted).
To the extent NGDC public safety obligations provide some minimum limitations on an
NGDC’s exercise of discretion under Section 59.18, there is simply no guidance therein with
22
Further, given “the utilit[ies’] . . . continue[d] . . . retain[ed]
discretion in applying [Section 59.18],” Petition, Ex. G, Title 52 Executive
Summary, at 1 (emphasis added), and the PUC’s declaration in the Final Rulemaking
Order that “it is necessary that . . . the utility be allowed to make the final
decision[,]” Petition, Ex. G, Final Rulemaking Order, at 26 (emphasis added),19 it is
unclear what standards the PUC would apply in deciding an appeal, other than
deferring to the NGDC. Petition, Ex. G. Under such circumstances, an appeal to
the PUC under Section 701 of the Code and Section 5.21 of the PUC’s Regulations
for an impartial review of an NGDC’s decision would be meaningless.
Conclusion
Accordingly, because the Municipalities’ “right to judgment is clear
and no material issues of fact are in dispute[,]” Jubelirer, 953 A.2d at 521 (quoting
respect to meter relocation decisions where an existing interior meter location in a historic building
is safe and reasonable, but an NGDC intends to relocate the meter to an interior location to
purportedly make it safer or, perhaps, for an arbitrary reason, or for no reason whatsoever.
19
Despite the PUC’s declarations in the Final Rulemaking Order that “the utility will
continue to retain discretion in applying this regulation,” Petition Ex. G, Final Rulemaking Order,
at 1, and “it is necessary that, due to its public safety obligations, the utility be allowed to make
the final decision[,]” Petition, Ex. G, Final Rulemaking Order, at 26 (emphasis added), the PUC
claims in its brief to this Court that “[t]he Code and . . . Section 59.18 have not delegated authority
to NGDCs for the final say on the placement of natural gas meters in historic districts.” PUC Br.
at 20 (emphasis added).
Similarly, despite urging that it is necessary that an NGDC make the final decision on meter
placement, see ___A.3d at ___, dissenting slip op. at 9, 17, 20, the Dissent inconsistently claims
“[Section] 59.18 does not delegate authority to NGDCs for the final say on the placement of
natural gas meters in historic districts. Rather, that final say is vested in the [PUC].” ___A.3d at
___, dissenting slip op. at 11 (emphasis added).
23
Calloway, 857 A.2d at 220 n.3), the Municipalities’ Application is granted.20
_________________________________
ANNE E. COVEY, Judge
20
The Municipalities also urge this Court to find Section 58.21 per se unconstitutional
since it delegates authority to private entities. In light of this Court’s holding, we need not decide
whether the PUC’s delegation to NGDCs is per se unconstitutional as a delegation to private
entities.
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Lancaster, Borough of :
Carlisle, and Borough of Columbia, :
Petitioners :
:
v. :
:
Pennsylvania Public Utility :
Commission, : No. 251 M.D. 2019
Respondent :
ORDER
AND NOW, this 11th day of October, 2022, the City of Lancaster’s, the
Borough of Carlisle’s, and the Borough of Columbia’s Application for Summary
Relief is GRANTED. This Court declares that Section 59.18 of the Pennsylvania
Public Utility Commission’s Regulations, 52 Pa. Code § 59.18, as amended by the
Final Rulemaking Order adopted on May 22, 2014, constitutes an unconstitutional
delegation of legislative authority, and is unenforceable.
_________________________________
ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
City of Lancaster, Borough of :
Carlisle, and Borough of Columbia, :
Petitioners :
: No. 251 M.D. 2019
v. :
: Argued: December 9, 2020
Pennsylvania Public Utility :
Commission, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
DISSENTING OPINION
BY JUDGE McCULLOUGH FILED: October 11, 2022
Prompted by safety concerns with gas leaks and explosions, among
other things, with indoor meters, the Pennsylvania Utility Commission
(Commission) amended the regulations at issue here.1 Contrary to the thoughtful
Majority, and notwithstanding that there are no specifically tailored standards for
placement of meters in historic districts, see City of Lancaster v. Pennsylvania.
Public Utility Commission (Pa. Cmwlth., No. 251 M.D. 2019, filed February 21,
2020) at 24-25, I disagree with the Majority that the Commission’s regulation, 52
1
See Building Explosion and Fire, Silver Spring, Maryland, August 10, 2016, NTSB/PAR-
19/01 and NTSB letter to PHMSA Administrator dated June 10, 2019, attached as Appendix A to
the Commission’s brief.
Pa. Code § 59.18 (Location of Meters) (hereinafter Regulation 59.18) lacks adequate
standards and/or procedures to guide natural gas distribution companies (NGDCs)
in determining where to place a meter located in a historic district. The
Commission’s regulatory amendments necessarily emphasize safety concerns
foremost, not aesthetics. However, the Commission does not preclude consideration
of the placement of meters indoors due to aesthetics. In fact, it specifically provides
for consideration by the NGDCs of the placement of meters inside buildings in
historic districts. As safety concerns override aesthetics, the NGDCs are given the
discretion as to the placement of these meters, while ultimate discretion resides with
the Commission.
For the reasons that follow, I believe (1) the Commission has provided
NGDCs with clear guidelines and sufficiently defined boundaries to enable the
NGDCs to make an informed decision as to whether a gas meter can safely be placed
indoors; and (2) the Commission actually retains the final and absolute discretion
over a NGDC’s decision in the placement of natural gas meters. Therefore, I am
unable to agree that Regulation 59.18 constitutes an unlawful delegation of the
Commission’s administrative rulemaking authority.
PAM - 2
Factual and Procedural Background2
Prior to its amendment, Regulation 59.18 permitted meters to be located
inside a building “preferably in a dry, well-ventilated place not subject to excessive
heat, and as near as possible to the point of entrance of the pipe supplying service to
the building.” (Final Rulemaking Order, attached to Municipalities’ Petition for
Review (PFR) as Exhibit “G,” at 3.) The Commission’s Gas Safety Division
concluded that the Commission’s existing regulation was vague, inadequate,
and out-of-date with respect to federal standards. In amending Regulation 59.18,
the Commission adopted the federal standards from the Pipeline and Hazardous
Materials Safety Administration’s (PHMSA) regulations.3 See 49 C.F.R. § 192.353(Customer meters and regulators: Location); 49 C.F.R. § 192.357 (Customer meters
and regulators: Installation).
In its Final Rulemaking Order, the Commission amended Regulation
59.18 governing gas meter location, 52 Pa. Code § 59.18. The meter location
requirements of Regulation 59.18 are safety regulations imposed to reduce the
2
The City of Lancaster, Borough of Carlisle, and Borough of Columbia (collectively,
Municipalities) have each established historic districts pursuant to the Historic District Act, Act of
June 13, 1961, P.L. 282, as amended, 53 P.S. §§ 8001-06. The Municipalities have, by ordinances,
established rules and regulations applicable in their historic districts. The Municipalities,
including properties located in their historic districts, are served by NGDCs, operating pursuant to
the rules and regulations of the Commission.
On May 22, 2014, the Commission adopted a Final Rulemaking Order, amending
Regulation 59.18 after the Commission’s Bureau of Transportation, Gas Safety Division,
investigated the issue of gas meter placement and relocation in the context of service disputes
between NGDCs and their customers.
3
PHMSA regulations are the “minimum safety requirements for pipeline facilities and the
transportation of [natural] gas . . . .” 49 C.F.R. § 192.1. States with PHMSA certifications, such
as Pennsylvania, may adopt additional or more stringent safety standards for intrastate pipeline
facilities when such standards are compatible with the minimum standards established by PHMSA.
49 U.S.C. § 60104(c).
PAM - 3
dangers from gas leaks. Final Rulemaking Order, 44 Pa.B. 5835, 5835-36, 5838
(2014) (concluding that “[s]pecifying mandatory requirements for meter,
regulator and service line locations is necessary to protect the safety of the
public” and that “[w]hile it appears from the data that the inside meter and regulators
were not always the primary factor for accidents, locating meters and regulators
inside certainly contributed to these incidents through a release of natural
gas”).
Regulation 59.18(a) generally requires that gas meters be located
“outside and aboveground.” The PUC has set forth rules and guidelines for NGDCs
to follow when installing gas meters inside and outside:
§ 59.18. Meter, regulator and service line location.
(a) General requirements for meter and regulator location.
(1) Unless otherwise allowed or required in this section,
meters and regulators must be located outside and
aboveground.
****
(6) The meter location must accommodate access for
meter reading, inspection, repairs, testing, changing
and operation of the gas shut-off valve.
(7) When feasible and practical to do so, the meter
location must accommodate the installation of the service
line in a straight line perpendicular to the main.
(8) Meters and service regulators may not be installed
in the following locations:
(i) Beneath or in front of windows or other
building openings that may directly obstruct
emergency fire exits.
PAM - 4
(ii) Under interior stairways.
(iii) Under exterior stairways, unless an
alternate means of egress exists and the meter
and service regulator are installed in a well-
vented location under stairs constructed of
noncombustible material.
(iv) A crawl space.
52 Pa. Code § 59.18(a)(1), (6)-(8) (emphasis added). Regulation 59.18(d) also
provides guidelines for when and how gas meters can safely be placed inside:
(1) Inside meter locations shall be considered only when:
(i) The service line pressure is less than 10
psig.
****
(ii)(D) A meter is located in a building . . .
within a locally designated historic district
or is eligible for the listing, or a building is
individually designated under a local
ordinance as a historic landmark or is
eligible for the listing.
(iii) Protection from ambient temperatures is
necessary to avoid meter freeze-ups.
(iv) A utility determines that a meter is
subject to a high risk of vandalism based
on the utility’s prior experience.
(v) A utility determines that an outside
meter location is neither feasible nor
practical.
(2) Except for low pressure systems with service line
pressure less than 10 psig, regulators must be located
outside when a meter is located inside.
PAM - 5
(3) Installed inside meters must be attached to an
operable outside shut off valve.
(4) Meters installed within a building must be located
in a ventilated place not less than 3 feet (914
millimeters) from a source of ignition or source of heat
which may damage the meter.
52 Pa. Code § 59.18(d)(1)-(4) (emphasis added).
The Commission, in promulgating this regulation, made clear that
utilities must consider installation of gas meters indoors in historic districts but the
decision whether to install a meter indoors involves an exercise of discretion by the
utility, noting “it is necessary that, due to its public safety obligations, the utility
be allowed to make the final decision.” Final Rulemaking Order, 44 Pa. B. at
5848.
Relying on Protz v. Workers’ Compensation Appeal Board (Derry Area
School District), 161 A.3d 827 (Pa. 2017), the Majority Opinion concludes that the
Commission has violated the nondelegation rule by giving NGDCs unfettered
discretion to apply their own standards when making that determination for historic
properties under Regulation 59.18. I must respectfully disagree.
Nondelegation Rule
Under article II, section 1 of the Pennsylvania Constitution, “[t]he
legislative power of the Commonwealth shall be vested in a General Assembly.” Pa.
Const. art. II, §1. Therefore, “when the General Assembly empowers some other
branch or body to act, our jurisprudence requires that the basic policy choices
involved in ‘legislative power’ actually be made by the [l]egislature as
constitutionally mandated.” Protz, 161 A.3d at 833. This is to ensure that “duly
authorized and politically responsible officials make all of the necessary policy
PAM - 6
decisions, as is their mandate per the electorate,” and also “to protect against the
arbitrary exercise of unnecessary and uncontrolled discretionary power.” Id.
Although generally forbidding the delegation of legislative power, in some instances
the Pennsylvania Constitution permits the General Assembly to assign its authority
and discretion to execute and administer a law, with the following limitations. First,
the General Assembly must make the basic policy choices, and second, the
legislation must include adequate standards to guide and restrain the exercise of the
delegated administrative functions. Id. This means that “the law must contain some
intelligible principle to which the person or body authorized to act is directed to
conform.” Id. A permissible delegation of legislative authority must include
concrete measures to channel the delegatee’s discretion and safeguards to protect
against arbitrary, ad hoc decision making – such as a requirement that the delegatee
hold hearings, allow for public notice and comment, or explain the grounds for its
decision in a reasoned opinion subject to judicial review. Id. at 835.
In Protz, the Supreme Court addressed the constitutionality of a
provision in the Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as
amended, 77 P.S. §§ 1-1041.4, 2501-2710, that required physicians performing
impairment rating evaluations of workers’ compensation claimants to apply the
methodology provided in the “most recent edition” of the American Medical
Association (AMA) Guides to the Permanent Evaluation of Permanent Impairment.
Protz, 161 A.3d at 830-31. The Supreme Court concluded that the General
Assembly’s delegation of authority to the AMA, a private entity, failed to provide
any of the necessary safeguards. Id. at 835. In particular, the Court concluded that
“the General Assembly did not favor any particular policies relative to the Guides’
methodology for grading impairments, nor did it prescribe any standards to create
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such a methodology.” Id. Without any parameters, the AMA would be free to adopt
any formula for impairment ratings and could change the formula at will, potentially
with such frequency that no one could keep up with the changes, or alternatively,
with such infrequency as to fall behind recent medical advances. Id. The Court also
found that the General Assembly did not include any of the procedural mechanisms
that are considered necessary to protect against “administrative arbitrariness and
caprice,” such as requiring the AMA to “hold hearings, accept public comments, or
explain the grounds for its methodology in a reasoned opinion, which then could be
subject to judicial review.” Id. at 836. Thus, the Court concluded that the General
Assembly unconstitutionally delegated lawmaking authority to the AMA. Id. at 838.
Unlike the Majority Opinion, I do not believe Regulation 59.18
constitutes an unconstitutional delegation of unbridled authority to NGDCs, as in
Protz.
All NGDCs are required to furnish and maintain adequate, efficient,
safe, and reasonable service and facilities that are necessary and proper for the
accommodation, convenience, and safety of the NGDCs’ patrons, employees, and
the public. See Section 1501 of the Public Utility Code (Code), 66 Pa.C.S. § 1501.
Regulation 59.18 requires NGDCs to consider inside placement of gas meters in
historic districts. Requiring NGDCs to consider, in the first instance, whether it is
safe, convenient, adequate, efficient, and reasonable to locate a meter inside in a
historic district, is not an unlawful delegation of the Commission’s authority.
The Commission cannot possibly decide where to place gas meters on a
property-to-property basis. That decision naturally depends on the unique physical
attributes of each property and the physical nature of the surroundings, which the
NGDCs’ personnel is in the best position to evaluate, just as it does for meters in
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non-historic districts. It is the NGDCs’ personnel who install, maintain, service,
monitor, and read the gas meters. In view of their expert knowledge of gas
distribution systems and their exclusive control over the gas meters, delegating to
the NGDCs the authority to apply prudent techniques and practices at each historic
property to determine if indoor meter placement is feasible or practical in view of
safety concerns is not an unlawful delegation of the Commission’s administrative
rulemaking power. As this Court has already observed, due to its public safety
obligations, it is necessary that the NGDC be allowed to make the final decision as
to meter placement. See UGI Utilities, Inc. v. City of Reading, 179 A.3d 624, 630
(Pa. Cmwlth. 2017).
Moreover, contrary to the conclusion of the Majority Opinion,
Regulation 59.18 does not vest absolute discretion in NGDCs with respect to the
placement of natural gas meters. Regulation 59.18 clearly states that an NGDC must
consider the location of a natural gas meter inside a building in a historic district.
However, the Commission still retains absolute discretion over the NGDCs’ decision
in the placement of natural gas meters. Section 701 of the Code, 66 Pa.C.S. § 701,
provides:
The commission, 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 commission has
jurisdiction to administer, or of any regulation or
order of the commission. Any public utility, or other
person, or corporation likewise may complain of any
regulation or order of the commission, which the
complainant is or has been required by the commission to
observe or carry into effect. The Commonwealth through
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the Attorney General may be a complainant before the
commission in any matter solely as an advocate for the
Commonwealth as a consumer of public utility services.
The commission may prescribe the form of complaints
filed under this section.
66 Pa.C.S. § 701 (emphasis added).
Section 5.21(a) of the Commission’s regulations likewise provides:
A person complaining of an act done or omitted to be done
by a person subject to the jurisdiction of the Commission,
in violation, or claimed violation of a statute which the
Commission has jurisdiction to administer, or of a
regulation or order of the Commission, may file a formal
complaint with the Commission.
52 Pa. Code § 5.21(a) (emphasis added).
If the NGDC determines that it cannot accommodate a natural gas meter
inside the building, an aggrieved party can ultimately have the Commission review
this determination pursuant to section 701 of the Code and section 5.21(a) of the
Commission’s regulations, 52 Pa. Code § 5.21(a). Once before the Commission for
review, the Commission reviews the NGDC’s meter location decision pursuant to
section 1501 of the Code, 66 Pa.C.S. § 1501, to determine whether the NGDC’s
natural gas meter location decision furnishes and maintains adequate, efficient, safe,
and reasonable service and facilities that are necessary and proper for the
accommodation, convenience, and safety of the NGDC’s patrons, employees, and
the public.
This complaint procedure on the placement of utility facilities was
recently affirmed by this Court. In Povacz v. Pennsylvania Public Utility
Commission, 241 A.3d (Pa. Cmwlth. 2020) (en banc) (affirmed in part, and reversed,
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in part, on other grounds), __ A.3d __ (Pa. Nos., 34-35 MAP 2021, filed August 16,
2021), consumers contested the placement of electric wireless smart meters. This
Court recognized that the Commission is fully capable of accommodating consumers
who do not want to accept electric wireless smart meters at their homes. This Court
analyzed Act 129, 66 Pa.C.S. § 2807(f), and determined that despite its language
directing the furnishing of smart meters on all residential service locations, the
Commission has the authority to direct utilities to make accommodations for the
substitution or relocation of wireless smart meters at residences. Although there was
no language in Act 129 providing a set procedure for customers to follow to
challenge placement of a wireless smart meter on their property, this Court
unequivocally recognized that the Commission is authorized to direct utilities in the
placement of utility facilities, specifically smart meters. Here, the Commission has
the same authority, recognized in Povacz, over the NGDCs that are placing natural
gas meters in historic districts. Just like the consumers in Povacz who contested
the placement of wireless smart meters on their residences, the Municipalities
and individual consumers are entitled to contest the NGDCs’ decision on the
placement of natural gas meters in historic districts before the Commission and
request an accommodation pursuant to Sections 701 and 1501 of the Code. 66
Pa.C.S. §§ 701, 1501.
Thus, I submit that Regulation 59.18 does not delegate authority to
NGDCs for the final say on the placement of natural gas meters in historic districts.
Rather, that final say is vested in the Commission. Regulation 59.18 simply directs
NGDCs to consider the interior placement of natural gas meters in historic districts,
and if the NGDC personnel decides it cannot safely keep a natural gas meter inside
an affected building, that decision is ultimately reviewable by the Commission based
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on record evidence provided by the parties to a complaint. Because there is an
administrative procedure under the Code and the Commission’s regulations for
reviewing the placement of natural gas meters by NGDCs, I would conclude that the
Municipalities’ argument that NGDCs have been vested with the ultimate authority
over the placement of natural gas meters in historic districts is without merit.
Regulation 59.18 Does Not Lack Adequate Standards
I further disagree with the Majority Opinion’s conclusion that Regulation
59.18 is unconstitutional for lack of adequate standards to guide and restrain the
NGDCs’ exercise of the delegated administrative functions.
Regulation 59.18 contains sufficiently detailed rules to guide and
restrain its execution by NGDCs in making the determination of whether to locate a
gas meter inside as opposed to outside and vice versa.
Substantive rulemaking is a widely used administrative practice, and its
use should be upheld whenever the statutory delegation can reasonably be construed
to authorize it. Tri-County Industries, Inc. v. Commonwealth of Pennsylvania, 818
A.2d 574 (Pa. Cmwlth. 2003), as amended, (Feb. 12, 2003), aff’d, 884 A.2d 867 (Pa.
2005). Here, there is no question that in enacting section 1501 of the Code, the
legislature made the basic policy choice that all NGDCs are required to furnish and
maintain “adequate, efficient, safe, and reasonable service and facilities” that are
necessary and proper for the accommodation, convenience, and safety of the
NGDC’s patrons, employees, and the public. In turn, the Commission promulgated
detailed regulations consistent with that basic policy choice of upholding safety.
Most significantly, Regulation 59.18 is not without standards and
guidelines. While it does not have specific guidelines pertaining only to historic
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buildings, Regulation 59.18 provides exactly when and how meters can safely be
placed inside – for historic and non-historic buildings. For example, pursuant to
Regulation 59.18 –
• A NGDC cannot install a meter inside if it cannot
be attached to an operable outside shut off valve. 52
Pa. Code §59.18(d)(3).
• A NGDC cannot place or leave a gas meter inside
if the service line pressure is greater than 10 psig. 52
Pa. Code §59.18(d)(1)(i).
• NGDCs must make sure that the gas meter is in
a well-vented area, not under a stairwell, or in a crawl
space, and the placement must “accommodate access
for meter reading, inspection, repairs, testing,
changing and operation of the gas shut-off valve.” 52
Pa. Code §59.18(a)(6), (8).
• Meters installed within a building must be
located in a ventilated place not less than 3 feet (914
millimeters) from a source of ignition or source of heat
which may damage the meter. 52 Pa. Code
§59.18(d)(4).
These are specific guidelines that restrict the NGDCs’ decision making
process when “considering” whether to place a gas meter inside a building in every
area, including a historic district. As noted, those rules and guidelines govern
NGDCs in carrying out their public utility functions under section 1501 of the Code,
which requires all NGDCs to, among other things, furnish and maintain services and
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facilities that are necessary and proper for the accommodation, convenience, and
safety of the NGDCs’ patrons, employees, and the public.4
4
In footnote 11 of its Opinion, the Majority charges the Dissent with “combining” and
“mischaracterizing” Regulation sections 59.18 (a) (general requirements for meter and regulator
location) and 59.18(d) (inside meter locations). We have done no such thing. As explained, the
Regulation sufficiently defines the restrictions under which inside meters shall be considered. If
these circumstances do not exist, then the general rule of paragraph (1) of subsection (a) applies
and the meter and regulator shall be located outside and above ground.
The Majority Opinion also proposes to create a distinction between the installation and
relocation of a meter in a historic district - when there is none, arguing that there are no specific
standards for the latter. The Regulation must be read in its entirety and when that is done properly,
it is clear that it does provide sufficient guidance and direction for the location of meters – which
necessarily includes both the installation and relocation of gas meters.
While complaining that there are no standards to guide NGDCs in determining whether to
relocate meters outside in a historic building, the Majority has not identified one proposed
additional standard that could be used in guiding historic building relocation determinations that
are not already in place. The only considerations that could possibly govern the relocation of
meters outside would necessarily focus on the potential physical harm to the building or aesthetics.
However, the foremost consideration by the NGDCs is whether the meter can safely remain inside
- regardless of the fact that the building may be harmed if it is relocated outside, or the potential
for physical harm to the building. Safety simply cannot take a back seat to aesthetics or the desire
to maintain the historic nature of a building. A gas meter cannot be installed or remain inside if
it is unsafe to do so – even when the meter clashes aesthetically with historical nature of the
building. Regulation sections 59.18(a) and (d) set forth precisely the minimum safety standards
that NGDCs must consider when making the determination of whether leaving a meter inside is
safe. The Majority itself cites the criteria to be used to evaluate the location of meters in historic
districts as safety-driven, which is exactly the point of the Dissenting Opinion. Ironically, these
are the very standards by which the NGDCs must determine, for any building, whether to place or
relocate a meter inside. It ignores the fact it was safety concerns due to explosions and gas leaks
that prompted the change in law to placement of meters outdoors in the first place. We have, in
this Dissenting Opinion, clearly extrapolated from the Regulation the standards to guide the NGDC
exactly when and how meters can safely be placed inside. Those guidelines and standards
undoubtedly focus on safety first.
The Majority Opinion further charges the Dissent with “misinterpreting” Regulation
59.18(d)(1)(i) “as its converse.” Again, that section provides: “Inside meter locations shall be
considered only when (i) The service line pressure is less than 10 psig.” Clearly, if the NGDC
must consider an inside meter only when service line pressure is less than 10 psig, then the inverse
necessarily is also true, namely, an inside meter cannot be placed inside if the service line is
greater than 10 psig.
PAM - 14
These standards are very clear and specific; but even if they were not,
Pennsylvania’s nondelegation doctrine “does not require that all of the details
needed to administer a law be precisely or separately enumerated in the statute.”
Pennsylvania Builders Association v. Department of Labor & Industry, 4 A.3d 215,
225 (Pa. Cmwlth. 2010); Matter of Revocation of Restaurant Liquor License No. R–
12122, 467 A.2d 85, 87 (Pa. Cmwlth. 1983). To constitute an adequate standard
under the delegation doctrine, the standard itself need “not be definite or precise.”
William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 293 (Pa.
1975). Standards that control a non-legislative party’s exercise of rulemaking
authority must be viewed in light of the task necessary to accomplish the General
Assembly’s purpose. Gilligan v. Pennsylvania Horse Racing Commission, 422 A.2d
487 (Pa. 1980). In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982), the U.S. Supreme Court noted that the degree of vagueness
that is constitutionally tolerable depends in part on the nature of the enactment. In
Kissane v. Town Council of Town of McCandless (Pa. Cmwlth., No. 314 C.D. 2015,
Feb. 18, 2016) 2016 WL 640650, slip op. at *10,5 local residents argued section
1313.06(e) of the McCandless Town Zoning Code, which provided that the Town
Council “may require to approve alternative design standards for off-street parking
in response to unusual conditions,” was an unconstitutional delegation of legislative
authority. We found that section 1313.06(e) reflected a legislatively determined
policy choice to permit a reduction in parking based upon an objective showing of
actual parking needs. We found the “expected parking” language in section
1313.06(e) to be an adequate standard upholding a basic policy choice by the Town
5
See 210 Pa. Code § 69.414(a) (an unpublished memorandum opinion, although not
binding precedent, may be cited for its persuasive value in accordance with section 414(a) of this
Court’s Internal Operating Procedures).
PAM - 15
to permit a reduction required parking spaces based upon documented analysis of
anticipated parking needs. As such, it did not constitute an unlawful delegation of
legislative power.
Again, here, the Commission’s primary consideration in placement of
meters is the safety of the NGDC’s patrons, employees and the public. In placing
meters, a NGDC must furnish and maintain services and facilities that are necessary
and proper for the accommodation and convenience of customers, but this must
always be subject to the overarching public safety concern. These rules and
guidelines governing the placement of meters apply equally to historic and non-
historic buildings alike.
The impetus of Municipalities’ complaint seems to be based solely
upon the concern that a gas meter placed outside could be incompatible with the
surrounding historic district or affect the property aesthetically. It makes no sense
to place aesthetics over safety. A building that is historically accurate but unsafe
seems to be theoretically counterintuitive. In any event, it cannot be said that
NGDCs do not consider aesthetics, even though it is not a specific guideline listed
under subsection (d)(1)(ii) regarding historic districts. See Centre Park Historic
District, Inc. v. UGI Utilities, Inc. City of Reading v. UGI Utilities, Inc. (Public
Utility Commission, C-2015-2516051, C-2016-2530475, filed October 24, 2019),
2019 WL 5592911 (holding that UGI’s revised Gas Operation Manual, which
contained standards including that UGI should attempt to locate meters in
unobtrusive locations to avoid placing meters in front of distinguishing exterior
features of historic properties, did not violate Regulation 59.18). If the customer is
not satisfied with the response, he still has a right to appeal to the Commission to
argue why his particular aesthetic request is feasible while still meeting the
PAM - 16
overarching concern for the safety of the NGDCs’ patrons, employees, and the
public.
Moreover, the obvious difficulty, if not impossibility, is the
implementation of regulations that will apply evenly to every request made by every
building owner in an historic district. Aesthetics will vary from building to building
and from historic district to historic district. It thus becomes a question of how the
Commission could ever enact regulations that would cover every aesthetic concern
in and of itself. Due to NGDCs’ public safety obligations and the fact that it is
impossible for the Commission to envision every individual circumstance, I submit
that it is necessary that the utilities be allowed to make the final decision as to
whether a meter should be located inside or outside a structure in a historic district
on a case-by-case basis to ensure the safety of the public and its personnel. In fact,
in UGI Utilities, Inc. v. City of Reading, 179 A.3d at 629-30, a panel of this Court
has already observed that, due to its public safety obligations, it is necessary
that the NGDCs be allowed to make the final decision as to meter placement.
In my view, when the Regulation is viewed as a whole, it is clear that
the Commission intended NGDCs to evaluate, on a case-by-case basis, whether a
meter associated with a building in a historic district should be left inside, taking
into consideration the guidelines and rules that have been enunciated. The
Commission cannot possibly be constitutionally required to appraise beforehand the
myriad situations in which it wishes a particular meter placement policy to be applied
and to formulate specific rules for each situation. NGDCs are public utilities with
special expertise when it comes to locating gas meters on a property-to-property
basis. Regulation 59.18 requires the NGDCs to give individualized consideration to
each property, based on customer feedback (regarding preservation of historical
PAM - 17
aesthetics) and safety – i.e., place indoors if it can be done safely, feasibly and
practically – given that it is the NGDCs that must access, repair, read, monitor, and
maintain the meter. Regulation 59.18 contains adequate standards to guide and
restrain NGDCs’ exercise of the delegated function. Necessity fixes a point beyond
which it is unreasonable and impracticable to compel the Commission to prescribe
even more detailed rules.
The Majority Opinion does not explain, nor can I fathom, how the
Commission could establish additional standards to any degree as being concrete -
as each individual gas meter placement would have different physical and aesthetic
considerations. The Majority Opinion would require standards for something that is
not measurable or definable. Again, the discretion granted in all cases, in historic
and non-historic districts, is guided first and foremost by “public safety”
pursuant to section 1501 of the Code. Further, Regulation 59.18 contains
specific and detailed rules and guidelines that inform the NGDCs when NOT to
put a meter inside and the parameters that must be followed when placing a
meter inside—for example, if the inside meter cannot be attached to an
operable outside shut off valve or if the service line pressure is greater than 10
psig. 52 Pa. Code § 59.18(d)(3). Further, the gas meter must be in a well-vented
area, it cannot be under a stairwell, or in a crawl space, and it must
“accommodate access for meter reading, inspection, repairs, testing, changing
and operation of the gas shut-off valve.” 52 Pa. Code § 59.18(a)(6), (8). Meters
installed within a building in a historic district must be located in a ventilated
place not less than 3 feet (914 millimeters) from a source of ignition or source
of heat which may damage the meter. 52 Pa. Code § 59.18(d)(4).
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Requiring NGDCs to consider placing gas meters indoors if they can
safely do so (by adhering to these specific rules and guidelines in Regulation 58.18)
and when feasible or practicable – in a manner so that the NGDCs can reasonably
and safely perform their public utility services to the public - does not constitute an
unconstitutional delegation of the Commission’s administrative rulemaking.
Lastly, to the extent that the Majority Opinion suggests that our prior
opinion stating there are no specific additional guidelines pertaining only to historic
districts in Regulation 59.18 binds our decision here, I disagree. First, a trial court
exercises different types of review for preliminary objections and motions for
summary judgment. “When reviewing preliminary objections the trial court looks
to the pleadings, but, in considering a motion for summary judgment the trial court
weighs the pleadings, depositions, answers to interrogatories, admissions and
affidavits.” Herczeg v. Hampton Township Municipal Authority, 766 A.2d 866, 870
(Pa. Super. 2001). Furthermore, a trial court may always revisit its own prior pre-
trial rulings in a case without running afoul of the law of the case doctrine.
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995). In our February 21, 2020
decision overruling the Commission’s preliminary objection to Count II (alleging
improper sub-delegation), we analyzed Regulation 59.18 in terms of whether the
Municipalities had exhausted their administrative remedies before seeking relief in
this Court. In ruling on that issue, we were required to accept as true the well-pled
facts of the Municipalities’ PFR that the Commission vested absolute, unfettered,
and unreviewable discretion in an NGDC when deciding whether to perform a meter
relocation. (PFR, ¶¶ 23, 55.)
Furthermore, in our prior ruling, we never addressed the question posed
here, which is whether detailed procedures specific to historic properties are needed
PAM - 19
in order for the Commission’s delegation of authority to be unlawful. As explained
herein, although Regulation 59.18 itself contains no specific separate procedures
with respect to the placement of meters on historic properties, other provisions of
the Regulation do contain sufficient measures to guide the NGDCs in their decisions
which apply to placement of all meters and specifically those that are considered for
placement indoors pursuant to subsection (d). Moreover, discretion must be vested
in the NGDCs and ultimately the Commission as safety must override aesthetics.
For example, as explained above, the NGDCs must follow specific
requirements pursuant to Regulation 59.18. The NGDCs must be able to attach the
inside meter to an operable outside shut off valve. The NGDCs cannot place a meter
inside if the service line pressure is greater than 10 psig. The gas meter has to be in
a well-vented area, it cannot be under a stairwell, or in a crawl space, and it must
“accommodate access for meter reading, inspection, repairs, testing, changing and
operation of the gas shut-off valve.” Meters installed within a building must be
located in a ventilated place not less than 3 feet (914 millimeters) from a source of
ignition or source of heat which may damage the meter. Further, section 1501 of the
Code requires all NGDCs to, among other things, furnish and maintain services and
facilities that are necessary and proper for the accommodation, convenience, and
safety of the NGDCs’ patrons, employees, and the public.
Due to NGDCs’ public safety obligations and the fact that it is
impossible for the Commission to envision every individual circumstance regarding
every building situated in the Commonwealth of Pennsylvania, it is necessary that
the utilities be allowed to make the final decision as to whether a meter should be
located inside or outside a historic structure on a case-by-case basis to ensure the
safety of the public and their personnel, guided by the specific guidelines for
PAM - 20
placement of all meters and those being considered for indoor placement. The
Municipalities have raised no other basis on which the placement of these meters
can be determined. The decision is then subject to appeal to the Commission for
further review. For these reasons, I believe our two rulings are entirely consistent
and not contradictory as argued by the Majority Opinion.
Based on the forgoing, I would deny the Municipalities’ application for
summary relief and dismiss their PFR.
________________________________
PATRICIA A. McCULLOUGH, Judge
President Judge Cohn Jubelirer joins in this dissenting opinion.
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