J.L. Moyer v. PPL Electric Utilities Corp.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J. Larry Moyer, :
Appellant :
:
v. : No. 587 C.D. 2019
: SUBMITTED: September 4, 2020
PPL Electric Utilities Corporation :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: October 23, 2020
J. Larry Moyer (Moyer), pro se, appeals from an April 3, 2019 order of the
Schuylkill County Court of Common Pleas (trial court) dismissing his civil
complaint against PPL Electric Utilities Corporation (PPL). We previously
remanded this matter to the trial court for a determination of whether Moyer’s appeal
was timely. On remand, the trial court concluded the appeal was untimely. We find
that conclusion was in error. However, after thorough review, we affirm the trial
court’s order dismissing Moyer’s complaint and precluding him from filing future
civil complaints regarding the same subject matter without leave of court.
I. Background
This matter is the most recent in a series of actions by Moyer against PPL. In
each proceeding, Moyer has sought virtual aggregation of the electric meters for his
solar array and residence. He has also contended that PPL is not paying the full
amount owed to him for electric power generated by his solar array, which PPL
purchases from him under the Alternative Energy Portfolio Standards Act.1
Prior to filing this action in the trial court, Moyer filed multiple complaints
with the Public Utility Commission (PUC), seeking the same relief he seeks here.
The PUC held multiple hearings, considered the large quantity of evidence submitted
by Moyer, consolidated two cases, and ultimately denied the relief Moyer now seeks
in his civil action. As explained more fully in the discussion section below, this
Court, in an extensive opinion, discussed the various administrative proceedings and
the issues Moyer raised therein, and upheld the PUC’s final decision. See generally
Moyer v. Pub. Util. Comm’n (Pa. Cmwlth., No. 882 C.D. 2016, filed March 13,
2017), 2017 Pa. Commw. Unpub. LEXIS 167 (unreported) (Moyer I).
In January 2019, Moyer filed this civil action against PPL in the trial court.
PPL filed preliminary objections to Moyer’s complaint, alleging the complaint was
barred by res judicata and collateral estoppel based on the previous litigation before
the PUC. Reproduced Record (R.R.) at 38a-64a. PPL also filed a separate motion
to dismiss Moyer’s complaint pursuant to Rule 233.1 of the Pennsylvania Rules of
Civil Procedure, Pa. R.C.P. No. 233.1 (Rule 233.1).2 R.R. at 9a-23a.
1
Act of November 30, 2004, P.L. 1672, as amended, 73 P.S. §§ 1648.1 – 1648.8. This act
fosters development of alternative energy sources, including solar energy. Homeowners who
install solar panels receive credit on their electric bills for the energy generated by the panels. If
the panels generate more electricity than the homeowner uses, the electric company must purchase
the excess. The act allows a property owner to use a single meter that reflects the net electricity
use or excess electricity generated, or in some situations, to use two meters, using a mechanism
known as virtual aggregation to determine the net electricity use or excess electricity generated.
2
Rule 233.1 of the Pennsylvania Rules of Civil Procedure (Rule 233.1) authorizes
dismissal of an action filed by a pro se plaintiff where the complaint is duplicative of a previous
action that has already been resolved. Pa. R.C.P. No. 233.1(a), (c). The text of Rule 233.1 is set
forth in pertinent part in section III.B below.
2
On April 3, 2019, the trial court issued an order dismissing Moyer’s complaint
with prejudice based on PPL’s motion pursuant to Rule 233.1(a). R.R. at 151a. As
authorized by Rule 233.1(c), the trial court’s order also barred Moyer from filing
any future civil complaints related to the same subject matter without prior leave of
court. Id. Both the order and the trial court docket indicate that copies of the April
3, 2019 order were mailed to the parties on that date.3 Id.; Notice of Appeal at 5.
Moyer filed a notice of appeal from the April 3, 2019 order. The notice of
appeal was dated April 30, 2019. However, the date stamp on the document,
confirmed by the trial court’s docket, indicated the notice of appeal was not filed
until May 13, 2019, 40 days after entry of the April 3, 2019 order from which the
appeal was taken. See Notice of Appeal at 1. Facially, therefore, the notice of appeal
appeared untimely.
However, on May 10, 2019, the trial court issued an order pursuant to Pa.
R.A.P. 1925(b) (Rule 1925(b)) directing Moyer to file a statement of errors
complained of on appeal. See R.R. at 155a. The trial court’s issuance of a Rule
1925(b) order implied that it had received the notice of appeal prior to that date.
Indeed, the trial court referred to the notice of appeal as timely in its Rule 1925(b)
3
Notwithstanding its April 3, 2019 dismissal of the complaint with prejudice, the trial court
also entered an order on April 15, 2019, sustaining PPL’s preliminary objections and dismissing
the complaint with prejudice “in accord with” the April 3, 2019 order. Original Record (O.R.),
Item #13. Moyer did not file an appeal from the April 15, 2019 order.
On November 8, 2019, PPL filed in this appeal an Application for Relief and Motion to
Dismiss (Application) based on Moyer’s failure to appeal from the April 15, 2019 order. PPL
argued the April 15, 2019 order offered an alternate basis for dismissal of the complaint with
prejudice. PPL therefore urged this Court to dismiss Moyer’s appeal of the April 3, 2019 order as
moot because of his failure to appeal from the April 15, 2019 order. On December 13, 2019, this
Court issued an order directing disposition of the Application together with the merits of the
appeal.
In our subsequent remand order, we dismissed the Application as moot. PPL did not renew
the Application on remand.
3
order. Id. Further, PPL, in a subsequent application for relief, similarly referred to
the notice of appeal as having been filed on April 30, 2019.
Thus, this Court was unable to determine from the record whether Moyer’s
notice of appeal was timely filed. By order dated February 28, 2020, we remanded
this matter with a directive to the trial court to issue a supplemental opinion on the
timeliness issue within 30 days, after holding a hearing if necessary. However, the
trial court held no hearing and apparently neither sought nor considered any
evidence. Instead, on April 8, 2020, 40 days after our order, the trial court issued a
supplemental opinion4 merely repeating what this Court already knew, i.e., that the
notice of appeal was dated April 30, 2019, but was not docketed until May 13, 2019,
even though the court received it sometime prior to that date. The trial court simply
concluded, based on the docketing date, and evidently without any inquiry into the
reason for the delay in docketing the notice of appeal, that the appeal was untimely.
The trial court’s supplemental opinion did not state on what date the court actually
received the appeal and did not otherwise advance this Court’s determination of
whether this appeal is properly before us.
In response to the trial court’s supplemental opinion, Moyer filed a
supplemental brief with this Court, arguing that his appeal was timely. Moyer
attached documentation to his supplemental brief showing that he mailed material
to the trial court on May 1, 2019, by overnight delivery; that the trial court received
the material on May 2, 2019; and that the prothonotary of the trial court sent
correspondence to Moyer on May 2, 2019, stating that his notice of appeal was being
4
The trial court also incorrectly directed its supplemental opinion to the Superior Court,
which resulted in additional delay in the opinion reaching this Court.
4
returned because he submitted an incorrect filing fee.5 Supplemental Brief of the
Appellant, Attachments B-E. After reviewing Moyer’s supplemental brief and
attachments, PPL submitted a letter to this Court indicating agreement with Moyer’s
assertion that his notice of appeal was timely submitted to the trial court.
II. Issues
On appeal,6 Moyer argues that the trial court erred in dismissing the complaint
pursuant to Rule 233.1, for various reasons. For clarity, we construe, reorganize,
and summarize his arguments as follows.
Moyer appears to posit that Rule 233.1 is inapplicable because the PUC lacked
jurisdiction to issue its previous decision on certain statutory issues, which Moyer
later re-raised in his complaint in the trial court. Moyer also suggests that the issues
he raises in this action are different from those asserted before the PUC because he
couched those issues in regulatory terms before the PUC and then as statutory issues
before the trial court. Accordingly, he contends the issues he now raises were not
previously resolved, for purposes of a dismissal under Rule 233.1.7
5
It appears Moyer originally submitted a check with his notice of appeal in the amount of
$90.00 for this Court’s filing fee, rather than the correct fee of $90.25. See Suppl. Br. of the
Appellant, Attachs. D-E. The de minimis nature of this defect in the notice of appeal further
highlights the impropriety, discussed below, of the prothonotary’s refusal to docket the notice of
appeal on the date it was received. See Pa. R.A.P. 902.
6
In general, our review of a trial court’s order granting a motion for dismissal under Rule
233.1 is limited to determining whether the trial court abused its discretion. Vasquez v. City of
Reading (Pa. Cmwlth., No. 1770 C.D. 2016, filed Aug. 2, 2017), 2017 Pa. Commw. Unpub. LEXIS
567 (unreported) (citing Coulter v. Ramsden, 94 A.3d 1080 (Pa. Super. 2014)). However, our
review of the trial court’s interpretation of a rule of civil procedure is de novo. Vasquez, slip op.
at 2 n.2 (citing Coulter, 94 A.3d at 1086). We cite this Court’s unreported decision in Vasquez as
persuasive pursuant to 210 Pa. Code § 69.414(a).
7
Moyer also suggests the trial court lacked adequate support for its Rule 233.1 dismissal
because it failed to consider Moyer’s arguments and issued a decision without granting his request
(Footnote continued on next page…)
5
Regarding the timeliness of his appeal, Moyer argues the prothonotary of the
trial court improperly refused to docket his timely-submitted notice of appeal. He
contends that the prothonotary was required to docket the notice of appeal when it
was received, notwithstanding its alleged defects.8
Because a timely appeal is a prerequisite to this Court’s exercise of
jurisdiction, we address the timeliness issue first.
III. Discussion
A. Timeliness of Appeal
A notice of appeal must be filed within 30 days after entry of the order from
which the appeal is taken. Pa. R.A.P. 903(a). A timely appeal is a jurisdictional
prerequisite. Monroe Cty. Bd. of Assessment Appeals v. Miller, 570 A.2d 1386 (Pa.
Cmwlth. 1990) (timeliness of an appeal is a jurisdictional question; it cannot be
waived and may be raised at any time by a party or by the court sua sponte).
Accordingly, if Moyer’s appeal is not properly before this Court, we lack jurisdiction
to decide it. An appellate court “may not enlarge the time for filing a notice of appeal
. . . .” Pa. R.A.P. 105(b).
The prothonotary’s correspondence to Moyer indicated his notice of appeal
was defective because it did not include this Court’s correct filing fee. However, a
for oral argument. In light of our conclusion that the trial court correctly dismissed the complaint,
we reject Moyer’s suggestion that the trial court failed to consider any pertinent issues. Regarding
Moyer’s alleged request for oral argument, the trial court had discretion to deny that request. See
Young v. Estate of Young, 138 A.3d 78, 86-87 (Pa. Cmwlth. 2016) (trial court has discretion to
deny argument request on preliminary objections and other motions). Accordingly, we do not
consider either of these issues further.
8
The timeliness of a notice of appeal, where a prothonotary has failed to time-stamp a
flawed but timely presented notice of appeal, is a question of law over which this Court’s scope of
review is plenary and its standard of review is de novo. Commonwealth v. Williams, 106 A.3d
583, 586 (Pa. 2014).
6
defect in a notice of appeal does not excuse the prothonotary from accepting the
notice of appeal for filing: “Upon receipt of the notice of appeal, the clerk [of the
trial court] shall immediately stamp it with the date of receipt, and that date shall
constitute the date when the appeal was taken, which date shall be shown on the
docket.” Pa. R.A.P. 905(a)(3) (Rule 905(a)(3)) (emphasis added). Moreover,
“[f]ailure of an appellant to take any step other than the timely filing of a notice of
appeal does not affect the validity of the appeal . . . .” Pa. R.A.P. 902 (Rule 902)
(emphasis added).
In Commonwealth v. Williams, 106 A.3d 583 (Pa. 2014), our Supreme Court
underscored the absence of discretion on the part of a trial court clerk or prothonotary
in accepting and docketing a defective notice of appeal. In Williams, the appellant
electronically filed a notice of appeal in the court of common pleas on the last day
of the appeal period. Instead of docketing the appeal, however, the court clerk
informed the appellant the next day that the notice of appeal was defective. Although
the appellant filed a corrected notice that same day, the appellee argued the appeal
was untimely. Our Supreme Court disagreed, finding that Rule 902 required the
court clerk to time-stamp and docket the notice of appeal when it was received,
regardless of any defect.9
The Court explained Rule 902’s purpose is to “‘eliminate[] the “trap” of
failure to perfect an appeal’ by making timely notices of appeal ‘self-perfecting.’”
Williams, 106 A.3d at 587 (quoting Rule 902, Note). “[Rule 902] creates a
preference for correcting procedurally defective, albeit timely, notices of appeal so
that appellate courts may reach the merits of timely appeals.” Williams, 106 A.3d at
587. “Very simply, the lower court clerk must time-stamp a notice of appeal
9
The defect in Williams related to the designation of multiple docket numbers in the notice
of appeal.
7
immediately upon receipt . . . . To hold otherwise would repudiate the directive of
Rule 902 that a timely notice of appeal is self-perfecting. It would also contravene
the plain language of Rule 905(a)(3) . . . .” Id.
The Court further explained that “the powers wielded by the clerk of courts,
like those of the prothonotary, are purely ministerial in nature.” Id. (emphasis
added). “Far from operating as an independent reviewer and screening officer with
respect to court filings, the clerk of courts fulfills a strictly administrative function,
and is therefore obligated to accept and process notices of appeal upon receipt in
accordance with the Rules of Appellate Procedure, notwithstanding any perceived
defects therein.” Id. Accordingly, the Court concluded “[t]he [court c]lerk’s failure
to time-stamp the . . . notice of appeal obviously does not mean that the . . . appeal
is improperly before this Court . . . . [T]his Court has jurisdiction over this timely
appeal.” Id. at 590.
Notably, in Williams, our Supreme Court expressly refused to consider the
nature of the defect that caused the court clerk’s refusal to accept the notice of
appeal, stating “[t]he precise nature of the alleged defect in the . . . notice of appeal
is of no consequence.” Id. Nonetheless, we observe that several appellate decisions
have specifically found an appellant’s failure to submit the proper filing fee with a
notice of appeal does not permit the clerk or prothonotary to refuse to time-stamp
and docket the notice of appeal when received. See, e.g., Kelley v. Harr (Pa. Super.,
No. 1332 WDA 2019, filed Apr. 22, 2020), 2020 Pa. Super. Unpub. LEXIS 1374(unreported)10 (trial court abused its discretion in finding appeal untimely, where
notice of appeal was timely submitted but prothonotary refused to time-stamp and
10
Unreported decisions of the Superior Court filed after May 1, 2019, are cited as
persuasive authority pursuant to the Superior Court’s Internal Operating Procedures. 210 Pa. Code
§ 65.37; see also Pa. R.A.P. 126(b)(2).
8
docket it because it was accompanied by incorrect filing fee); Commonwealth v.
Anderson (Pa. Super., No. 808 WDA 2019, filed Mar. 10, 2020), 2020 Pa. Super.
Unpub. LEXIS 835 (unreported) (appeal was timely despite clerk’s unauthorized
rejection of notice of appeal submitted without filing fee); First Union Nat’l Bank v.
F.A. Realty Inv’rs Corp., 812 A.2d 719, 723 (Pa. Super. 2002) (where notice of
appeal was timely presented for filing, perfection of appeal did not depend on
payment of filing fee). We find these decisions persuasive here.
The prothonotary’s correspondence to Moyer, dated May 2, 2019,
demonstrates that Moyer’s notice of appeal was timely received in the trial court.11
A defect in the form of an incorrect filing fee did not justify refusal to docket the
timely notice of appeal. Accordingly, we conclude that the trial court erred in
finding Moyer’s appeal untimely.
B. Dismissal Pursuant to Rule 233.1
Having won the timeliness battle, Moyer nonetheless loses the war. On
review of the substance of his appeal, we find the trial court acted within its
discretion pursuant to Rule 233.1 in dismissing the complaint and precluding Moyer
from filing further complaints of a similar nature without prior leave of court.
Rule 233.1 provides, in pertinent part:
11
We note that the attachments to Moyer’s supplemental brief are not part of the original
record as lodged by the trial court. However, PPL did not object to any of the attachments or
challenge their authenticity or accuracy. Accordingly, in the interests of justice, we will consider
the attachments. See Pa. R.A.P. 105(a) (rules of appellate procedure are liberally construed; “[i]n
the interest of expediting decision, or for other good cause shown, an appellate court may . . .
disregard the requirements or provisions of any of these rules in a particular case on application of
a party or on its own motion . . .”); M.A. Bruder & Son, Inc. v. Workmen’s Comp. Appeal Bd.
(Harvey), 485 A.2d 93, 95 n.2 (Pa. Cmwlth. 1984) (where parties did not dispute existence and
effect of document attached to appellate brief, appellate court would consider it in the interest of
judicial economy, despite its omission from the certified record).
9
(a) Upon the commencement of any action filed by a pro se
plaintiff in the court of common pleas, a defendant may file a motion
to dismiss the action on the basis that
(1) the pro se plaintiff is alleging the same or related
claims which the pro se plaintiff raised in a prior action
against the same or related defendants,[12] and
(2) those claims have already been resolved
pursuant to a written settlement agreement or a court
proceeding.
* * *
(c) Upon granting the motion and dismissing the action, the court
may bar the pro se plaintiff from pursuing additional pro se litigation
against the same or related defendants raising the same or related claims
without leave of court.
Pa. R.C.P. No. 233.1(a), (c).
The Note to Rule 233.1 explains that although disciplinary measures are
available to deter attorneys from filing repetitive lawsuits, there are no parallel
measures applicable to pro se plaintiffs. Rule 233.1 therefore provides a means of
obtaining relief from repetitive pro se lawsuits. See Pa. R.C.P. No. 233.1, Note. As
the Superior Court has explained, “Rule 233.1 was promulgated by our Supreme
Court in 2010 to stem a noted increase in serial lawsuits of dubious merit filed by
pro se litigants disaffected by prior failures to secure relief for injuries they perceived
but could not substantiate.” Gray v. Buonopane, 53 A.3d 829, 835 (Pa. Super. 2012).
Thus, the purpose of Rule 233.1 is to forestall “potential manipulation of the legal
process by those not learned in its proper use, [by] seeking to establish accountability
for pro se litigants commensurate with that imposed upon members of the Bar.” Id.12
PPL was the intervenor and target of Moyer’s requests for relief in the PUC proceedings.
Moyer does not contend that this action fails to involve the same parties as the PUC proceedings,
for purposes of Rule 233.1.
10
1. “Related” Claims
Although this Court has not had occasion to consider in detail what constitutes
the “same or related” claim under Rule 233.1, the Superior Court has provided
persuasive guidance. In Gray, the Superior Court reasoned that the “same or related”
language of Rule 233.1 does not require application of the elements of res judicata13
or collateral estoppel;14 “rather, it merely requires that the parties and the claims
raised in the current action be ‘related’ to those in the prior action and that those
prior claims have been ‘resolved.’” Id. at 836. Claims are “related” for purposes of
Rule 233.1 if they bear “a rational relationship evident in the claims made . . . .” Id.
at 838.
Although Moyer insists the issues in this case are distinct from those in his
claims before the PUC, the record belies that assertion. In his complaint before the
trial court, Moyer summarized the issues he was raising against PPL: “the arbitrary
‘commercial’ [GS-1] designation [of the solar array]; the imposition of an unlawful
‘commerical’ customer charge; the policy of requiring ‘non-generational load’; and
13
“The doctrine of res judicata [applies] where the former and latter suits possess the
following common elements: ‘(1) identity of issues; (2) identity in the cause of action; (3) identity
of persons and parties to the action; and (4) identity of the capacity of the parties suing or being
sued.’” Gray v. Buonopane, 53 A.3d 829, 835 n.3 (Pa. Super. 2012) (quoting Daley v. A.W.
Chesterton, Inc., 37 A.3d 1175, 1189-90 (Pa. 2012), and In the Matter of Iulo, 766 A.2d 335, 337
(Pa. 2001)).
14
Collateral estoppel applies if four elements are present: (1) an identical issue decided in
a prior action is identical to the one presented in a later action; (2) a final judgment on the merits
in the prior action; (3) the party to be estopped was a party or in privity with a party to the prior
action; and (4) the party to be estopped had a full and fair opportunity to litigate the issue in the
prior action. Gray, 53 A.3d at 835 n.4 (citing Columbia Med. Grp., Inc. v. Herring & Roll, P.C.,
829 A.2d 1184, 1190 (Pa. Super. 2003)).
11
the far-reaching implications of these practices for renewable energy . . . .” 15 R.R.
at 8a. Moyer’s 2011 and 2014 complaints to the PUC, as well as the PUC’s various
decisions and this Court’s decision affirming the PUC, demonstrate that these same
issues formed the bases of Moyer’s complaints before the PUC. See generally O.R.,
Item #5, Exs. A-H.
Indeed, Moyer’s 2014 complaint before the PUC expressly acknowledged that
it was duplicative of earlier complaints:
This new complaint seeks redress for billing errors since January
9, 2014, when the PUC issued an Opinion and Order that addressed the
period covered by an earlier complaint (C-2011-2273645). This
present Complaint seeks to resolve the billing complaints in that case,
which remains under appeal. That earlier Complaint, as yet unresolved,
also includes an appeal of a 2011 decision by the PUC’s BCS (Case
#2778513).
* * *
The bills included here are for May, June, July, and August,
2014, and have been issued since the Opinion and Order related to an
earlier Complaint (Docket #C-2011-2273654). That Complaint raised
similar concerns about the “billing process” which PPL Electric
Utilities has used for virtual meter aggregation.
Id., Ex. D at 3-4 & Attach. 4 (emphasis added). That acknowledgment demonstrates
that Moyer’s prior and current claims are “related” for purposes of Rule 233.1. Thus,
15
Regarding this last issue, the complaint contains no averments of fact in support other
than a conclusory footnote alleging a legislative policy of offering incentives for customers to use
alternative energy sources. See Reproduced Record (R.R.) at 4a n.2. We therefore find that
contrary to his summary of issues, Moyer has not raised this issue in his complaint, nor has he
pleaded facts in support of either his standing to raise the issue or the trial court’s jurisdiction to
entertain it. Accordingly, it is not properly before us on appeal. See Commonwealth v. Ralston,
800 A.2d 1007, 1010 n.5 (Pa. Cmwlth. 2002) (assertion on which appellant bore burden of proof,
which was not pleaded or otherwise established before trial court, was waived); Green v.
Commonwealth, 445 A.2d 1341, 1343-44 (Pa. Cmwlth. 1982) (matters not properly raised in trial
court cannot be considered on appeal; appellant also lacked standing to assert argument on behalf
of non-parties, and appellate court would not review such arguments).
12
it further supports the trial court’s exercise of discretion in dismissing the complaint.
Accord Coulter v. Lindsay, 159 A.3d 947, 952 (Pa. Super. 2017) (trial court properly
dismissed action, pursuant to Rule 233.1, where plaintiff contended her claims were
not related to prior lawsuits, but conceded in her complaint that the issues were the
same as those resolved in a prior action).
2. Claims “Resolved” in a “Court Proceeding”
This Court has likewise had no previous occasion to construe Rule 233.1’s
requirement that a prior action by a pro se plaintiff was “resolved pursuant to. . . a
court proceeding.” Pa. R.C.P. No. 233.1(a)(2). We note that in Gray, the Superior
Court opined that Rule 233.1 was intended to “assure[] that the pro se litigant is
availed of a chance to address his claim subject . . . to the procedural safeguards that
attend a court proceeding.” Gray, 53 A.3d at 836.
Here, Moyer had the opportunity to present extensive evidence at multiple
hearings before the PUC. Arguably, the procedural safeguards attendant in the PUC
proceedings offered him a full and fair opportunity to address his claims; indeed, he
had multiple full and fair opportunities to do so.
However, the plain language of Rule 233.1 requires resolution of prior claims
through either a settlement agreement or a court proceeding. Here, Moyer’s claims
ultimately were resolved in a court proceeding, i.e., this Court’s extensive opinion
on appeal of the PUC’s final decision on Moyer’s consolidated 2011 and 2014
complaints. See generally Moyer I.
In Moyer I, this Court carefully considered – and rejected – all of the claims
Moyer asserts in this action:
(1) We found Moyer’s assertion of eligibility for virtual meter aggregation,
including his challenge to PPL’s independent load requirement, was moot, because
13
PPL had already agreed to allow Moyer to continue participating in virtual meter
aggregation.16 Moyer I, slip op. at 9; see also id. at 10 n.6 (“because the independent-
load requirement . . . is not being applied to Moyer’s facility, its validity is not
properly before this Court . . .”).
(2) We concluded that the PUC properly determined PPL could use manual
billing and did not need to implement automated billing for its virtual meter
aggregation program. Id., slip op. at 11. Further, we found that substantial evidence
supported the PUC’s decision that PPL maintained adequate records regarding
Moyer’s accounts; that PPL provided descriptions for its record entries and
explained its calculations and credits; and that PPL demonstrated its tabulations of
data and explained any alleged inconsistencies in Moyer’s bills. Id., slip op. at 12-
13.
(3) We found the PUC was correct in concluding that PPL’s tariff, as
approved by the PUC, required Moyer’s solar facility to be billed under PPL’s GS-
1 commercial rate rather than its residential rate. Id., slip op. at 13-14.
(4) We rejected Moyer’s contention that this Court’s decision regarding
common pleas jurisdiction in Sunrise Energy, LLC v. FirstEnergy Corp., 148 A.3d
894 (Pa. Cmwlth. 2016) (en banc), nullified the PUC’s decision in Moyer’s case.
We specifically held that our decision in Sunrise Energy “does not affect the
jurisdictional validity of the PUC’s order” in Moyer’s case. Moyer I, slip op. at 8.
In Lerner v. City of Philadelphia (C.P. Philadelphia, No. 131202384, filed
September 10, 2014), 2014 Phila. Ct. Com. Pl. LEXIS 297 (unreported), the Court
of Common Pleas of Philadelphia County found that this Court’s review in a
16
This agreement by PPL was essentially a partial settlement. It therefore fit within Rule
233.1 as a resolution of one of Moyer’s prior claims, for that additional reason. See Pa. R.C.P.
No. 233.1(a)(2).
14
statutory appeal from an agency determination offered sufficient procedural
safeguards to constitute resolution by a “court proceeding” for purposes of Rule
233.1(a)(2). In Lerner, the appellant asserted a tax challenge to the city’s tax review
board, despite the board’s findings that it lacked jurisdiction over the appellant’s
prior challenge to the board regarding the same tax year. In dismissing the matter
pursuant to Rule 233.1, the court observed that the board’s determination that it
lacked jurisdiction over the previous challenge regarding the same taxes had been
upheld by both the common pleas court and this Court on appeal. The court reasoned
that “under Rule 233.1, if the Court determines that the claim is related to a claim
from a prior action such that the pro se plaintiff was given the opportunity to address
his or her claim ‘subject to . . . the procedural safeguards that attend a court
proceeding[,]’ the Court may dismiss the action and bar the pro se plaintiff from
pursuing additional related pro se litigation.” Id., slip op. at __, 2014 Phila. Ct. Com.
Pl. LEXIS 297, at *9-*10 (quoting Gray, 53 A.3d at 836). Therefore, because the
claim at issue had already been resolved by the tax board’s decision and the two
court appeals, the Lerner court concluded the appellant was properly barred under
Rule 233.1 from asserting further challenges regarding the same tax year. Moyer I,
slip op. at __, 2014 Phila. Ct. Com. Pl. LEXIS 297, at *13-*14.
We find the reasoning of the Lerner court persuasive here. Moyer is asserting
the same claims in this action that were previously rejected by the PUC and then by
this Court on appeal. We find the requisites of Rule 233.1 have been satisfied, in
that Moyer’s claims have been previously resolved in a court proceeding. Therefore,
the trial court did not abuse its discretion in dismissing the complaint and barring
Moyer from further pro se filings on the same subjects without leave of court.
15
III. Conclusion
Based on the foregoing discussion, we affirm the trial court’s decision.
__________________________________
ELLEN CEISLER, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
J. Larry Moyer, :
Appellant :
:
v. : No. 587 C.D. 2019
:
PPL Electric Utilities Corporation :
ORDER
AND NOW, this 23rd day of October, 2020, the April 3, 2019 order of the
Court of Common Pleas of Schuylkill County is AFFIRMED.
__________________________________
ELLEN CEISLER, Judge