IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eileen Walden, :

Petitioner :

 :

v. : No. 1335 C.D. 2020

 : Submitted: August 27, 2021

Public Utility Commission, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER FILED: April 18, 2022 

Eileen Walden (Petitioner), pro se, petitions for review of the November 19, 

2020 Opinion and Order of the Public Utility Commission (Commission) denying 

in part Petitioner’s Exceptions, adopting the Administrative Law Judge’s (ALJ) 

Initial Decision as modified, and denying and dismissing her Amended Formal 

Complaint (Amended Complaint).

2

 In the Amended Complaint, Petitioner 

challenged her high electricity bills from the Philadelphia Electric Company 

1 This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn 

Jubelirer became President Judge. 

2 The Commission granted Petitioner’s Exceptions “in limited part” and modified the Initial 

Decision in ways not relevant to the issues on appeal. (Commission Opinion and Order (Op.) at 

2.)
2

(PECO)

3 during the period between November 2017 and April 2018, arguing that 

PECO incorrectly billed her because, during this period, there was an unprecedented

spike in kilowatt hour (kWh) usage that was unrelated to her actual usage. The ALJ 

concluded that Petitioner had not met her burden of proving that her bill was 

inaccurate or too high or that PECO had violated the Public Utility Code (Code),

4

and/or the Commission’s Regulations or orders and, therefore, denied and dismissed 

Petitioner’s Amended Complaint. (Initial Decision, Conclusion of Law (COL) ¶ 6

& Order.) On appeal, Petitioner asserts that she presented substantial evidence 

showing that PECO improperly billed her given her historical electric usage and that

the Commission erred in accepting PECO’s contrary evidence as it was neither 

factually nor legally sound. Petitioner further argues her due process rights were 

violated when the ALJ did not hold a prehearing conference, which would have 

assisted in the exchange of evidence and aided Petitioner in presenting her case. 

Additionally, Petitioner filed an Application for Relief requesting that the 

Court consider certain documents omitted from the record on appeal based on 

evidentiary rulings by the ALJ, their alleged untimeliness, or their being submitted 

after the hearing.5 Therein, Petitioner requests that the Court consider: Exhibits 2 

and 7; her replies to PECO’s Answer to the Amended Complaint; an October 23, 

2019 letter to the ALJ requesting reconsideration of the ALJ’s evidentiary ruling 

regarding Exhibits 2 and 7; an October 24, 2019 letter to the ALJ in which Petitioner 

claims she requested that PECO’s Answers to Interrogatories be included in the 

3 PECO is not a party to this matter. 

4

66 Pa.C.S. §§ 101-3316.

5 By order dated May 25, 2021, the Court denied Petitioner’s Application for Relief. 

Thereafter, Petitioner filed an Application for Reconsideration/Reargument requesting the Court 

to reconsider its May 25, 2021 order. The Court granted reconsideration and allowed the parties 

to file supplemental briefs on this issue by order dated June 29, 2021.
3

record; and an October 28, 2019 follow-up letter to the ALJ. The Commission filed 

an answer and an Application to Strike, seeking to strike certain portions of 

Petitioner’s filings that refer to the omitted documents and the facts alleged therein. 

I. BACKGROUND

A. Factual Allegations and Pleadings

Petitioner receives gas and electricity service from PECO at her residence and 

has done so for years. Between November 2017 and April 2018, Petitioner noticed 

that her kWh usage of electricity was unusually high based on her historical usage. 

On January 5, 2018, Petitioner contacted PECO to dispute the amounts billed for 

electricity usage, claiming they were too high. (Reproduced Record (R.R.) at 20a, 

40a.) As a result, PECO sent a technician (Technician) to investigate the issue on 

January 23, 2018. Technician performed a visual inspection of and various tests on 

Petitioner’s smart meter (meter), including a drop load test that idled the meter and 

a passing load test with a space heater, to determine the meter’s accuracy. (Id.) 

Based on this inspection, Technician concluded that the meter was accurate. During 

this visit, Petitioner told Technician that she does not use space heaters for long 

periods of time and that these usage amounts were unusual for her. As a result, 

PECO issued a one-time courtesy adjustment from 2,287 kWh to 800 kWh, thereby 

reducing Petitioner’s bill from $323.56 to $118.65. (Id.). PECO issued a utility 

report on January 29, 2018, summarizing the above history, to which Petitioner 

responded on February 6, 2018, challenging the validity of the stated findings and

the method used to determine the meter’s accuracy, and questioning whether a 

security breach was responsible for the unexplained spike in kWhs. (Id. at 20a, 40a.) 
4

Subsequently, Petitioner filed a formal dispute with PECO on March 11, 

2018, disputing, among other things, the “validity of the tests used to determine the 

meter’s accuracy and the meter multiplier that establishes that the meter reading is a 

calculated result.” (Id. at 8a, 42a-46a.) PECO sent another technician to Petitioner’s 

residence on April 13, 2018. (Id. at 64a.) During this visit, the technician inspected 

the meter, dropped the load and idled the meter to verify the accuracy of the meter,

and performed a passing load test with one of Petitioner’s space heaters, which 

registered a usage of 1,080 watts out of 1,500 watts. (Id.) Petitioner’s meter was

found to be 99.98% accurate on the first test and 99.96% accurate on the second test. 

(Id.) 

On August 22, 2018, Petitioner received a 10-day shutoff notice for payment 

of $635.53, which she paid on September 1, 2018. (Id. at 8a.) On the same date, 

Petitioner filed an informal complaint with the Commission’s Bureau of Consumer 

Services (BCS). (Id.) On September 6, 2019, the BCS issued its decision finding 

that Petitioner’s bills were correct as rendered and that the meter tested within 

regulatory tolerances and, accordingly, closed the case. (Id. at 21a.) 

On July 5, 2019, Petitioner filed a Formal Complaint against PECO with the 

Commission to dispute her high bills. (Supplemental Reproduced Record (S.R.R.) 

at 0097b.) Therein, Petitioner averred that PECO’s smart meter registered kWh 

usage that far exceeded her prior billing cycles “without any change in electrical 

connections or their use that justifies or supports [this increase].” (Id. at 0099b.) 

Petitioner explained that “[o]ver the course of more than a decade, [PECO’s] billing 

records establish a pattern of usage that directly contradicts the accuracy of the meter 

readings reported for the Nov[ember] 2017 thr[ough] Apr[il] 2018 billing cycles.” 

(Id.) Petitioner noted that she has a gas-powered furnace and that PECO’s billing 
5

records show that the pattern of gas usage remained consistent “with prior billing[]

[periods] during the period in question and that consistency argues against the kWh 

reported on the Nov[ember] 2017 [through] Apr[il] 2018 bills.” (Id.) As relief, 

Petitioner requested the return of the $635.53 payment plus interest, that late fees be 

removed from her current billings, and any additional compensation to which she 

may be entitled. (Id. at 0102b.) 

PECO filed its Answer on July 18, 2019, denying Petitioner’s material 

allegations. (Id. at 0120b-22b.) PECO stated that, on April 13, 2018, its technician 

visited Petitioner’s property to verify the meter and obtained an additional meter 

reading that verified the accuracy of the last billed meter reading. (Id. at 0120b.) 

The technician also “performed a passing load test to determine the accuracy of the 

meter[ and] . . . an instrument meter test[, which] confirmed the meter is operating 

within . . . Commission and PECO guidelines.” (Id. at 0121b.) Thus, the technician 

determined Petitioner’s meter was accurate and she was properly billed for her 

usage. 

Petitioner filed the Amended Complaint on August 22, 2019, adding 

averments regarding her informal complaint to the Bureau of Consumer Services 

and its decision. The Amended Complaint also questioned the security of the smart 

meters and PECO’s ability to communicate with the meter and, potentially, to 

“access and manipulate the electrical connections of its customers.” (R.R. at 9a.) 

PECO filed its Answer to the Amended Complaint on September 6, 2019, denying 

Petitioner’s material allegations, and requesting that the Amended Complaint be 
6

denied. (Id. at 10a-12a.) Petitioner submitted replies to PECO’s Answer dated 

October 13 and 15, 2019.6 (Id. at 26a-34a.) 

Petitioner’s Amended Complaint was scheduled for a hearing before an ALJ

on September 9, 2019, but was continued at Petitioner’s request. The hearing was 

rescheduled to October 23, 2019. 

B. Hearing Before the ALJ 

At the hearing, Petitioner testified on her own behalf and offered seven 

exhibits to support her claim that PECO improperly billed her between November 

2017 and April 2018. (S.R.R. at 0003b-5b.) Initially, Petitioner inquired about 

responses to interrogatories she had served on PECO that she had claimed to not yet 

have received. (Id. at 0007b.) PECO responded that it had provided its responses 

by email the day before the hearing, which was 20 days after its receipt of the 

interrogatories. (Id. at 0007b-8b.) Petitioner testified about the size of her residence, 

her appliances, her historical usage of electricity, and what led her to believe that 

she was being improperly billed by PECO. (Id. at 0012b-13b, 0023b-28b.) 

Petitioner acknowledged that she had two space heaters but stated she only used one 

of them at a time. (Id. at 0028b, 0034b.) Petitioner indicated there was no change 

in her usage over the period in question that would support the usage claimed by 

PECO in her bills and questioned whether the tests performed by PECO’s 

technicians actually addressed the issue and if there was some kind of manipulation 

of her meter. (Id. at 0013b-15b, 0032b-33b.) Petitioner testified that on or around

February 14, 2018, she shut everything off in the house and the meter read an 

6 These documents were identified as Petitioner’s Exhibits 2 and 7 at the hearing and their 

admission into the evidentiary record was denied by the ALJ. As these are part of the Application 

for Relief, we note only, at this point, that they were filed.
7

additional 10 kWh, which she could not understand. (Id. at 0014b.) Petitioner 

acknowledged that PECO gave her a credit of 800 kWh and that her usage returned 

to “normal” in May of 2018. (Id. at 0013b, 0038b-39b.) Petitioner introduced a 

number of documents into the record, including her replies to PECO’s Answer to the 

Amended Complaint, which were marked as Exhibits 2 and 7, and the attachments 

to her replies, which were marked as Exhibits 3 through 6. (Id. at 0016b-23b.) 

PECO, represented by counsel, presented the testimony of two witnesses: 

Technician, who performed the January 2018 inspection of Petitioner’s meter; and 

PECO’s manager of the smart grid operations and technology group (Manager). (Id.

at 0041b, 0059b-60b.) Technician testified that he worked for PECO for 12 years 

and “was trained as a high bill investigator,” which involves searching “for foreign 

wiring, cross wiring, [and] meter mix ups,” testing meters, and issuing high bill 

investigation field reports. (Id. at 0042b.) Technician explained what occurs during 

a high bill investigation and the procedures that were used to investigate Petitioner’s 

meter. (Id. at 0044b-47b, 0055b-56b.) Technician testified that he performed “a 

partial appliance analysis” as a “full appliance analysis” was declined, and he was 

able to identify appliances that contributed to Petitioner’s high usage and that, based 

on the passing load and idle tests performed, Petitioner’s meter was accurate and 

functioning properly. (Id. at 0045b-48b.) According to Technician, it was 

“impossible” for Petitioner’s meter to malfunction and then correct itself. (Id. at 

0047b.) Technician also testified about the April 2018 inspection performed by a 

different technician, stating it showed that the meter was performing correctly and 

was consistent with his January 2018 inspection and report. (Id. at 0049b-50b.) On 

cross-examination, Technician explained the different types of tests performed on 

Petitioner’s meter to determine the meter’s accuracy and that all he could do was 
8

offer a good faith credit because the meter was accurate. (Id. at 0054b-56b.) 

Technician indicated he did not execute a full appliance analysis, but performed a 

visual inspection to determine what appliances were present. (Id. at 0058b.)

Manager testified to the operation of PECO’s smart grid system, specifically 

the two-way communication between the meter and PECO as required by Act 129 

of 2008 (Act 129).7 (Id. at 0061b-62b.) Manager explained that the meters, which 

are encrypted, send electrical usage information to PECO and PECO can send 

commands to the meter to, among other things, disconnect the meter, upgrade the 

firmware, and test the meter’s security. (Id.) According to Manager, PECO cannot 

unilaterally change or alter the meter readings, the meters only register the energy 

that is consumed once an hour, and the meters do not interface with any appliances. 

(Id. at 0062b-63b, 0082b.) Manager further testified that “[w]hen [the] temperature 

drops, the usage increases considerably,” and that when the temperature was below 

50 degrees Fahrenheit, as it was during this period, there is considerably more usage 

at Petitioner’s residence. (Id. at 0064b-65b.) Manager indicated that the meter tests, 

revealing that Petitioner’s meter was 99.98% and 99.96% accurate, were within the 

thresholds for accuracy. (Id. at 0066b-67b.) On cross-examination, when asked 

about whether a meter could be hacked, Manager acknowledged that “anything is 

possible” but explained there was no evidence that this had occurred, and PECO 

encrypted the meters to avoid any outside interference. (Id. at 0070b-72b.) Manager 

indicated that meter multipliers were not used in residential meters, like the one 

found in Petitioner’s home. (Id. at 0075b-76b, 0078b-80b, 0082b.) Finally,

Manager explained that sometimes unexpected spikes in electricity usage can be the 

7 Act of October 15, 2008, P.L. 1529, No. 129. Act 129 amended various provisions of the 

Code and addressed the use of smart meter technology. See Section 2807(f), (g) of the Code, 66 

Pa.C.S. § 2807(f), (g).
9

result of a malfunctioning appliance and that Petitioner’s appliances, generally,

could account for the changes in usage. (Id. at 0084b-86b.) 

At the end of the testimony, Petitioner inquired about whether she would have 

an opportunity to submit additional comments or evidence after the hearing. The 

ALJ explained that everything had to be submitted at the hearing and Petitioner 

would not be able to submit anything else unless Petitioner moved to reopen the 

record, at which time Petitioner would have to be specific about what evidence 

Petitioner wanted to offer. (Id. at 0087b-90b.) The parties then moved for the 

admission of their exhibits. PECO objected to the admission of Petitioner’s Exhibits 

2 and 7, arguing that they were not evidence, but pleadings, and contained hearsay. 

(Id. at 0091b-93b.) The ALJ sustained the objection because “they are more 

pleadings rather than exhibits,” and did not admit those documents into the 

evidentiary record. (Id. at 0094b.) The documents that had been attached to Exhibits 

2 and 7 were admitted into the record as Petitioner’s Exhibits 3-6. (Id. at 0094b95b; R.R. at 39a-52a.) Following the hearing, Petitioner sent letters dated October 

24 and 28, 2019, to the ALJ.8

C. The ALJ’s Initial Decision

On March 3, 2020, the ALJ issued the Initial Decision. Therein, the ALJ made 

the following procedural rulings. First, the ALJ denied Petitioner’s request that the 

evidentiary ruling excluding Exhibits 2 and 7 because “the documents were 

pleadings [and] not actual exhibits” be reconsidered, explaining that Petitioner had 

“not provide[d] any legal reason as to why [the] initial ruling . . . was incorrect.” 

(Initial Decision at 2 & n.1.) Second, the ALJ addressed multiple letters that 

Petitioner sent after the conclusion of the hearing (post-hearing correspondence), 

8 These documents are also subjects of the Application for Relief.
10

noting that Petitioner had been told at the hearing that if Petitioner wanted to submit

further evidence, Petitioner would need to file a motion to reopen the record and 

provide specific reasons as to why the record should be reopened and what Petitioner 

would want to present. (Id. at 8; S.R.R. at 0089b-90b.) The ALJ explained that 

Petitioner’s correspondence “d[id] not contain any specific request to reopen the 

record nor d[id] it contain what evidence [Petitioner] would wish to present” but 

“simply dispute[d] PECO’s position in the case and the evidence that [PECO] 

presented at the hearing.” (Initial Decision at 8.) Thus, the ALJ did not consider the 

post-hearing correspondence because Petitioner “failed to present any ‘reason to 

believe that conditions of fact or of law have so changed as to require, or that the 

public interest requires, the reopening of the proceeding.’” (Id. (quoting Section 

5.571(d) of the Commission’s Regulations, 52 Pa. Code § 5.571(d)).) 

The ALJ then addressed the merits of Petitioner’s high bill dispute, on which 

Petitioner bore the burden of proof. While recognizing that there was an increase in 

Petitioner’s usage “from the winter period of 2016-2017 to 2017-2018, it is clear 

that the electricity that [Petitioner] is using is within her energy usage potential.” 

(Id. at 11.) Additionally, the ALJ noted that “temperatures were colder and there 

were more heating degree days[9]in the winter of 2017-2018 as compared to the 

winter of 2016-2017.” (Id.) The ALJ also referenced the high bill investigations 

9 The Commission’s Regulation at 52 Pa. Code § 61.1 defines degree day as “[a] unit used 

in estimating quantities of fuel and power consumption based on a daily ratio of consumption the 

mean temperature below 65oF.” Thus, heating degree days are “summations of negative 

differences between the mean daily temperature and the 65[-degree] base[.]” Dziadas v. Pa. Pub. 

Util. Comm’n (Pa. Cmwlth., No. 1951 C.D. 2010, filed Feb. 3, 2012), slip op. at 5 n.6 (alteration 

in original) (internal quotations omitted). Unreported opinions, while not precedential, may be 

cited for their persuasive value. Pennsylvania Rule of Appellate Procedure 126(b), Pa.R.A.P. 

126(b); Section 414(a) of the Commonwealth Court’s Internal Operating Procedures, 210 Pa. Code 

§ 69.414(a). 
11

conducted by PECO, which found Petitioner’s meter to be working properly and 

providing accurate readings. (Id.) In addressing the alleged security breach, the ALJ 

indicated there was no evidence of foreign wiring, tampering, or other irregularities 

and that Petitioner had not “allege[d] that there were any issues with the meter before 

or after the winter period of 2017-2018.” (Id. at 11.) Further, the ALJ noted that

PECO’s witnesses testified that “a meter cannot malfunction and then correct itself”

and that PECO cannot “alter or change the meter readings.” (Id.) Based on this, the 

ALJ concluded Petitioner did not “me[e]t her burden of demonstrating that there 

were irregularities in her bills from PECO or that she was experiencing any safety 

or reliability issues at the [s]ervice [a]ddress” and dismissed the Amended 

Complaint. (Id.) 

D. Petitioner’s Exceptions and PECO’s Reply

Petitioner filed Exceptions to the ALJ’s Initial Decision. (R.R. at 69a-75a.) 

Petitioner excepted to the facts that PECO’s witnesses testified without PECO 

advising Petitioner beforehand and the ALJ’s removal of Exhibits 2 and 7, which 

she acknowledges were pleadings, from the record based on PECO’s objections. (Id.

at 69a-70a.) Petitioner also excepted to the ALJ’s findings of fact based on 

Technician’s and Manager’s testimony, arguing that had Petitioner been informed 

about the witnesses’ testimony, Petitioner “would have been prepared to question 

the basis for the allocation of usage necessary to compute the ‘total potential usage 

of 4,125 kWh.’” (Id. at 70a (quoting Initial Decision at 4).) Petitioner further argued 

that those witnesses’ testimony were based on arbitrary assumptions about potential 

usage of appliances. Additionally, Petitioner argued that the courtesy that was 

extended based on Petitioner’s claim that the usage was abnormal “is not factual.” 

(Id. at 71a.) Finally, Petitioner challenged the refusal of the ALJ to consider 
12

Petitioner’s post-hearing correspondence, disputed PECO’s evidence in general, and 

disputed the reliance on the heating degree day data regarding usage in particular. 

(Id. at 71a-74a.) Petitioner contended her evidence made out a prima facie case. (Id.

at 74a.) 

PECO responded, pointing out that Petitioner “d[id] not allege that the ALJ 

made an error of law” or committed an abuse of discretion but “except[ed] to the 

decision issued by [the] ALJ[] because [Petitioner] simply disagree[d] with the 

ALJ’s decision and believe[d] [Petitioner] submitted adequate proof” that supports 

her position. (Id. at 80a.) PECO asserted that Petitioner was re-litigating the issues 

raised in both Complaints and at the hearing. (Id.) In addressing Petitioner’s posthearing correspondence, PECO argued that Petitioner did not follow the ALJ’s

instructions and never filed a motion to reopen the record to submit additional 

evidence. (Id.) Further, PECO stressed that the ALJ “provided [Petitioner] ample 

opportunity to present [] evidence, cross-examine PECO’s witnesses[,] and present 

any objections to said evidence.” (Id. at 81a.) Addressing the merits of Petitioner’s 

dispute, PECO asserted that the ALJ’s decision should be affirmed because PECO 

presented credible evidence regarding the high bill investigations conducted at 

Petitioner’s residence and that its witnesses’ testimony was consistent with 

documentary evidence. (Id. at 81a-82a.) Thus, based on the credible evidence 

presented by PECO, the ALJ “correctly determine[d] that [Petitioner] had not met 

her burden of proof.” (Id. at 83a.) 

E. The Commission’s Order and Opinion

On November 19, 2020, the Commission rendered its Order and Opinion. As 

a threshold matter, the Commission addressed Petitioner’s arguments related to 

Exhibits 2 and 7, her replies to PECO’s Answer and use of extra-record material in 
13

her Exceptions. With respect to the exhibits, the Commission did not rely on or cite 

the ALJ’s reasoning, but noted that PECO filed its Answer on September 6, 2019, 

making any reply from Petitioner due September 29, 2019. (Commission’s Order 

and Opinion (Op.) at 6 (citing Section 5.63(a) of the Commission’s Regulations, 52

Pa. Code § 5.63(a) (“replies to answers seeking affirmative relief . . . shall be filed

with the Commission and served within 20 days after date of service of the 

answer”)).) Because Petitioner did not file her replies until mid-October 2019, “well 

beyond the required due date,” without proffering good cause for the late filing, the 

Commission declined to consider the replies. (Commission’s Order and Op. at 6.) 

It further observed that the untimely replies were not entered on the record at the 

hearing based on PECO’s objections and, as such, they were not “removed” from 

the record as Petitioner contended. (Id. at 20.) Addressing Petitioner’s use of extrarecord material that had been submitted after the hearing, the Commission stated that

“parties cannot introduce new evidence at the exceptions stage,” as doing so would 

violate the opposing party’s due process rights, and the ALJ had provided reasons 

for why the later-submitted materials did not justify reopening the record. (Id. at 

14.) Thus, the Commission rejected Petitioner’s use of the extra-record materials in 

her Exceptions. (Id. at 15.) 

The Commission then addressed Petitioner’s Exceptions, finding no merit to 

Petitioner’s challenge to the ALJ’s findings of fact and evidentiary rulings. (Id. at 

19-21.) The Commission found no merit in Petitioner’s Exception based on an 

alleged violation of Sections 5.421 and 5.321(f) of the Commission’s Regulations, 

52 Pa. Code §§ 5.421, 5.321(f), regarding her not receiving advance notice of 

PECO’s witnesses or a list of witnesses. It explained that the former regulation 

applied to the issuance of subpoenas and that the latter regulation, related to the 
14

scope of discovery, did not require the provision of a witness list to an opposing 

party, although one could be sought through discovery. (Id. at 20-21.) 

Addressing Petitioner’s Exception related to her burden of proof, which she 

argued she had met, the Commission explained that to satisfy her burden of proof 

Petitioner “must prove[, by a preponderance of the evidence,] that there are incorrect 

charges on her bill or that PECO violated the Code, its tariff, or a Commission 

Regulation or Order.” (Id. at 21.) While recognizing the increase in Petitioner’s 

billed kWh usage, the Commission concluded that Petitioner’s evidence “d[id] not 

effectively support her claim that the billed electric usage at the [s]ervice [a]ddress 

was inaccurate at any time, or that PECO violated the Code, its tariff, or a 

Commission Regulation or Order.” (Id. at 22.) The Commission noted that, upon 

notice of the issue, PECO investigated Petitioner’s high bill and meter when it sent 

two technicians to Petitioner’s residence, and it credited PECO’s evidence regarding 

the accuracy of Petitioner’s meter, the inability of “a meter to malfunction and then 

correct itself,” and the workings of the smart meter system, which did not allow 

PECO to alter any meter readings. (Id. at 22-23.) Based on the record, the 

Commission held there was nothing to reflect that PECO billed Petitioner incorrectly 

or violated the Code, its tariff, or a Commission order or Regulation. Finally, the 

Commission determined that the ALJ “properly weighed the evidence presented to 

conclude that [Petitioner] failed to carry the burden of proof on her [Amended] 

Complaint” and dismissed the Amended Complaint. (Id. at 23.) Accordingly, the 

Commission granted in part and denied in part Petitioner’s Exceptions, adopted, as 
15

modified, the ALJ’s Initial Decision, and denied and dismissed Petitioner’s high bill 

dispute. (Id. at 23-24.) Petitioner now petitions this Court for review.

10

II. DISCUSSION

A. Applications Before the Court

In addition to Petitioner’s appeal, Petitioner filed an Application for Relief to 

which the Commission filed a response and an Application to Strike. Petitioner

seeks to have the Court consider Exhibits 2 and 7 and her post-hearing 

correspondence to the ALJ that, she argues, were improperly omitted or excluded

from the record and the Commission’s Certified List of Documents (Certified List). 

Petitioner argues that the post-hearing correspondence requested that relevant 

material be made a part of the record and was submitted per the ALJ’s instructions

given after the hearing which were not part of the transcript. (Petitioner’s 

Supplemental (Suppl.) Brief (Br.) at 10-11.) Petitioner asserts that because the 

omitted documents were filed before the record closed on November 25, 2019, and 

were received and not returned, the ALJ should have exercised control over the 

documents and considered, not excluded, them. (Id. at 11-12.) Petitioner contends 

that because the documents were acted upon in the proceeding, in that they were 

excluded, they are “ipso facto on the record of the proceeding.” (Id. at 12.) 

Petitioner asserts that the evidentiary record is required to “account for all that 

transpires in the adjudication of a claim[,]” that pleadings are permitted to be entered 

10 This Court’s scope of review of the Commission’s adjudication is limited to 

“determining whether the necessary findings of fact were supported by substantial evidence, 

whether constitutional rights were violated, or whether the Commission erred as a matter of law.” 

Hess v. Pa. Pub. Util. Comm’n, 107 A.3d 246, 258 n.7 (Pa. Cmwlth. 2014). Substantial evidence 

“is such relevant evidence that a reasonable mind might accept as adequate to support a 

conclusion.” Phila. Gas Works v. Pa. Pub. Util. Comm’n, 898 A.2d 671, 675 n.9 (Pa. Cmwlth. 

2006). 
16

into evidence, and, even if ruled inadmissible, “remain on the record of the 

proceedings.” (Id. at 13.) Finally, Petitioner argues that PECO’s objection to and 

the omission of the documents from the record “stands in opposition to the law that 

defines what constitutes the record for decision” and “any objection to the inclusion 

of [the documents] must be found unlawful.” (Id. at 14.) 

The Commission argues that the omitted documents were never a part of the

evidentiary record and, therefore, were not improperly omitted from the Certified 

List. It maintains that Petitioner’s attempt to introduce evidence after the conclusion 

of the hearing before the ALJ is improper, and, based on the Commission’s

Regulations, the ALJ was correct in excluding the materials. The Commission 

further argues that Petitioner has failed to identify the harm caused by the omission 

nor has Petitioner addressed what in the omitted documents was “new, novel[,] and 

critical to [Petitioner’s] claims.” (Commission’s Suppl. Br. at 15.) The Commission 

states that “[f]or purposes of [a]ppellate review, that which is not part of the certified 

record does not exist.” (Id. at 18 (citing B.K. v. Dep’t of Pub. Welfare, 36 A.3d 649, 

657 (Pa. Cmwlth. 2012)).) The Commission continues, stating

[w]hile [Pennsylvania] Rule [of Appellate Procedure] 1951(b)[, 

Pa.R.A.P. 1951(b),] permits any items omitted from the record or 

misstated therein to be admitted or corrected upon stipulation by the 

parties or upon direction of the Court, this case [] does not involve a 

situation whereby information or evidence has been misstated in or 

omitted from the Certified List.

(Id.) Citing Grubbs v. Pennsylvania Board of Probation and Parole, 481 A.2d 1390, 

1391 (Pa. Cmwlth. 1984), the Commission argues that the word “proceeding” in 

Pennsylvania Rule of Appellate Procedure 1951(a)(3), Pa.R.A.P. 1951(a)(3),

“includes only documents and facts developed during an administrative hearing in 

the presence of the litigants and their counsel.” (Id. at 20.) The Commission further 
17

states “even if evidence is proffered during an administrative hearing, if its 

admissibility is not ruled upon by the presiding officer, it is not a part of the agency 

record.” (Id. (citing Humphrey v. Workmen’s Comp. Appeal Bd. (Supermarket 

Serv.), 514 A.2d 246, 251 (Pa. Cmwlth. 1986)).) Thus, the Commission maintains 

that, because the post-hearing correspondence and Exhibits 2 and 7 are not part of 

the agency record, the Court cannot consider them in determining whether 

substantial evidence exists to support Petitioner’s allegations against PECO. (Id.) 

Consistent with these arguments, the Commission filed its Application to Strike 

seeking to strike the portions of Petitioner’s filings that reference extra-record

material. 

Petitioner filed a reply, asserting that, although the Petitioner’s replies to 

PECO’s Answer were not admitted into evidence, “they are nevertheless a part of

the record of proceedings and do appear on the Certified List of Documents as ‘Item 

13 – Reply to Answer – Walden.’” (Petitioner’s Reply to the Commission’s Suppl. 

Br. at 2.) As such, Petitioner contends that the replies to PECO’s Answer, which are

Exhibits 2 and 7, were properly cited in her brief. (Id.) With respect to the posthearing correspondence, Petitioner maintains that, in reliance on the ALJ’s 

advisement after the hearing, Petitioner delivered the documents to the ALJ within 

the time allowed “obviating the need to file a request to reopen the record.” (Id. at 

3.) Petitioner asserts that counsel for PECO “misstated the fact regarding the timely 

submittal of the [Petitioner’s interrogatories] that is evidenced by the [United States 

Postal Service] certified date of delivery that evidences otherwise.” (Id.) 

Additionally, Petitioner argues that, pursuant to Rule 1951(a)(3), the record for 

appellate review includes “pleadings not in evidence, evidence, and proceedings 

before the government unit.” (Id. at 4.) Petitioner asserts that the interrogatories 
18

were part of the proceedings because they were discussed at the hearing and “PECO 

did not respond as regulation requires and the submittal of those documents after the 

hearing was in accord with the ALJ’s advisement notwithstanding the fact that the 

ALJ omitted that fact from [the] decision.” (Id.) Thus, Petitioner submits that,

“[p]ursuant to Rule 1951, pleadings are required to be included on the record [and] 

are subject to this Court’s review.” (Id. at 6.) 

Pursuant to Rule 1951(a), the agency record in proceedings on a petition for 

review consists of: “(1) [t]he order or other determination of the government unit 

sought to be reviewed[;] (2) [t]he findings or report on which such order or other 

determination is based[; and] (3) [t]he pleadings, evidence and proceedings before 

the government unit.” Pa.R.A.P 1951(a). The word “proceedings,” as used in Rule 

1951(a), includes only the documents and facts that were developed during the 

administrative hearing in the presence of the litigants and counsel. Grubbs, 481 

A.2d at 1391. Even if evidence or documents are mentioned in the proceedings, they

must be admitted during the administrative hearing to be part of the record. Id. 

Evidence that is proffered, but the admissibility of which is not ruled on, is not part 

of the agency record. See Humphrey, 514 A.2d at 251. This Court has stated

[i]t should be well established by now that neither the [administrative 

agency] in its decision[-]making process, nor this Court in a review of 

that process, may consider any matters not made a part of the record

when counsel and the litigants are present. Whether or not such matters 

would be prejudicial to the [p]etitioner is irrelevant. They simply 

cannot be considered.

Grubbs, 481 A.2d at 1391 (emphasis added). Further, the Commission’s 

Regulations also control what evidence can be admitted into the record. Section 

5.403(a) of the Commission’s Regulations gives the presiding officer the authority 

to control the receipt of evidence. 52 Pa. Code § 5.403(a).
19

We begin with Exhibits 2 and 7, which were not admitted into evidence by 

the ALJ based on PECO’s objection that they were pleadings, not evidence, and 

which the Commission rejected as being untimely filed without good cause pursuant 

to Section 5.63(a) of the Commission’s Regulations, 52 Pa. Code § 5.63(a). As to 

the Commission’s reasoning, the timeliness of Petitioner’s replies was not raised by 

PECO at the hearing or cited by the ALJ as the basis for the non-admission of those 

documents. Because PECO did not raise this issue, Petitioner was not provided an 

opportunity to establish good cause for the untimeliness, which the Commission 

found lacking in its Order and Opinion. Other than citing a public policy that favors 

the adherence to the Commission’s deadlines, the Commission did not provide 

authority for its sua sponte consideration of an issue not raised by PECO as a basis 

for the replies’ non-admission. Accordingly, we will not consider that reason. 

As to the ALJ’s reason for not admitting the replies into the record based on 

the replies being pleadings and not evidence, such reason does not find support in 

the Commission’s Regulations. While Section 5.403(a) of the Commission’s 

Regulations gives the ALJ the authority to control the receipt of evidence, Section 

5.405(b) specifically addresses pleadings as evidence. Section 5.405(b) provides

that except in “noncontested proceeding[s]” or where facts are admitted by a party 

in an answer, “a pleading, or any part thereof[,] may not be considered as evidence 

of a fact other than that of filing thereof unless offered and received into evidence.” 

Id. Thus, this provision contemplates that “a pleading, or any part thereof” may be 

considered evidence if “offered and received into evidence.” 52 Pa. Code § 5.405(b). 

Thus, contrary to the ALJ’s determination, the fact that the replies were pleadings 

did not exclude them from being evidence once they were offered into evidence, 

which occurred here. Accordingly, it was error not to admit Exhibits 2 and 7 as
20

evidence or not to include them in the record simply because they were pleadings, 

and Petitioner’s Application for Relief as to those documents is granted and the 

Commission’s corresponding Application to Strike is denied as to those documents.

However, this error does not require reversal because our review of Exhibits 

2 and 7, as requested by Petitioner, and the record created before the ALJ reveals 

that the non-admission of Petitioner’s replies was harmless error. An error is 

harmless if a party does not suffer prejudice as a result of the error. Lake Adventure 

Cmty. Ass’n v. Dingman Twp. Zoning Hearing Bd., 72 A.3d 807, 809 (Pa. Cmwlth. 

2013). As our Supreme Court has explained, “[t]he rationale behind the harmless 

error doctrine is judicial efficiency.” Interest of J.M.G., 229 A.3d 571, 581 (Pa. 

2020). The doctrine “is a technique of appellate review designed to advance judicial 

economy by obviating the necessity for a retrial where the appellate court is 

convinced that a trial error was harmless.” Id.

Petitioner argues that the “[r]eplies are relevant and material to the issues the 

exhibits prove, exemplify and support and they defend the matters sworn to in 

Petitioner’s Amended Complaint . . . that [PECO’s] Answers den[ied].” 

(Petitioner’s Br. at 28.) The Commission asserts that any error in the non-admission 

of these Exhibits was harmless and, therefore, the Order and Opinion should be 

affirmed. (Commission’s Suppl. Br. at 15-17.) 

Exhibit 2 consists of a cover letter dated October 13, 2019, Petitioner’s reply 

to PECO’s Answer to the Amended Complaint, and four attached documents. In the 

reply, Petitioner: argued that PECO’s Answer misstated facts; challenged PECO’s 

“blanket denial of ‘. . . all material allegations of fact’”; and referenced the February 

6, 2018 letter challenging the results of PECO’s January 23, 2018 inspection and 

inquiring about meter multipliers, the March 11, 2018 Notice of Formal Dispute
21

doing the same, and PECO’s lack of responses thereto. (R.R. at 26a-28a.) Petitioner 

further disputed certain facts asserted in PECO’s Answer, such as her declining an 

appliance analysis, challenged PECO’s assertion that the load tests using her space 

heater established the accuracy of the meter, and maintained that the BCS results did 

not address all of the issues Petitioner raised. (Id. at 28a-31a.) Petitioner questioned 

PECO’s ability to send commands to the meter and whether the “false readings [of 

Petitioner’s] meter” was related to an “erroneous command or system glitch.” (Id.

at 31a-32a.) Exhibit 7 is a cover letter dated October 15, 2019,11 and an updated 

page 6 of the previously sent reply. Therein, Petitioner asserted another challenge 

to the adequacy of the load test to establish the accuracy of the meter, citing her own 

actions in shutting off her main circuit breaker over two nights in February 2018, 

which allegedly resulted, respectively, in the meter increasing from 32,221 to 

32,231, and 32,261 to 32,267. (Id. at 34a.)

While Petitioner argues that the replies supported or proved the documents 

attached to Exhibit 2, those documents were, themselves, admitted into evidence by 

the ALJ as Petitioner’s Exhibits 3-6. Therefore, their contents were a part of the 

record considered by the ALJ and the Commission and certified to this Court. Thus, 

there was no prejudice to Petitioner to the extent those documents were not also

admitted as a part of Exhibit 2. Further, Petitioner had the opportunity to raise, and 

did raise, the arguments and issues from her replies at the hearing before the ALJ. 

Petitioner testified before the ALJ in support of her Amended Complaint, which 

Petitioner asserts the replies “defend[ed].” (Petitioner’s Br. at 28.) Petitioner 

explained the history of the dispute, PECO’s investigations, and her reasons for 

believing why those investigations were insufficient to establish the meter’s 

11 Although the letter is dated October 15, 2016, it specifically references the response sent 

on October 13, 2019. Thus, the date appears to be a typographical error.
22

accuracy, including her turning everything off for two nights and the meter still 

showing 10 kWh of usage. Petitioner challenged PECO’s arguments and evidence,

including the adequacy of load tests, the appliance analysis, the ability of PECO to 

communicate with and/or manipulate the meter, and the use of meter multipliers.

Because Petitioner presented the arguments and facts contained in the replies 

through testimony and the admission of Exhibits 3-6, they were in the record for the 

ALJ’s consideration notwithstanding that the replies themselves were not. 

Accordingly, we discern no prejudice to Petitioner in the non-admission of the 

replies.

With respect to Petitioner’s post-hearing correspondence to the ALJ, which 

were the October 24 and 28 letters relating to PECO’s Answers to her 

Interrogatories, these materials were not admitted because Petitioner failed to file a 

motion to reopen the record and explain specifically what would be presented at an 

additional hearing, as the ALJ had instructed during the hearing. (Initial Decision at 

8; S.R.R. at 0089b-90b.) The ALJ explained that the correspondence “simply 

dispute[d] PECO’s position in the case and the evidence that they presented at the 

hearing and d[id] not indicate that there would be any new evidence which 

[Petitioner] would provide.” (Initial Decision at 8.) Petitioner concedes that she did 

not file a motion to reopen the record, contending that the ALJ later, off the record, 

advised Petitioner that she could submit additional evidence after the hearing. 

(Petitioner’s Reply Br. at 12-13.) However, the official transcript of the proceedings 

reflectsthat the ALJ gave Petitioner the opposite instructions, (S.R.R. at 0089b-90b), 

which is confirmed by the ALJ’s Initial Decision that specifically references those 

instructions, (Initial Decision at 8). “For purposes of appellate review, that which is 

not part of the certified record does not exist.” B.K., 36 A.3d at 657. As the October 
23

24 and 28, 2019 materials were not presented and admitted into evidence at the 

October 23, 2019 hearing, at which both Petitioner and PECO were present, or at a 

subsequent hearing based upon a granted motion to reopen the record, they are not 

a part of the “proceedings” or the record. Humphrey, 514 A.2d at 251; Grubbs, 481 

A.2d at 1391. For these reasons, we deny Petitioner’s Application for Relief as to 

the post-hearing correspondence and grant the Commission’s corresponding

Application to Strike as to those documents. Thus, we will not consider those parts 

of Petitioner’s briefs and reproduced record that reference the omitted material.12

B. High Bill Dispute

We turn now to Petitioner’s high bill dispute.13 Petitioner’s challenge focuses

on how PECO’s arguments and evidence were insufficient to establish that she was 

not overcharged. In contrast, Petitioner maintains that she met her burden of proof 

through her evidence. Petitioner asserts that the heating degree day data “does not 

support the conclusion that colder temperatures caused the abnormally high bills in 

dispute.” (Petitioner’s Br. at 20.) Petitioner contends that there is no correlation 

between the colder temperatures and the amount of kWh usage billed and that, if 

such correlation existed, her gas usage would have increased during that period, and 

it did not. (Id. at 20-22.) Petitioner also contends that her prior billings evidence an 

anomaly with respect to the 2017-2018 period and that the Commission’s decision 

relied on “falsely concluded evidence to the detriment of Petitioner’s right to a fair 

hearing of the issues.” (Id. at 23.) Petitioner also challenges PECO’s reliance on 

Petitioner’s potential energy usage, arguing that PECO used arbitrary assumptions 

12 Even if those materials were considered, a review thereof reveals that they, too, would 

not change the result where the additional information was not inconsistent with the evidence 

presented and accepted by the ALJ.

13 We have reorganized Petitioner’s argument for ease of discussion. 
24

to “calculate potential energy usage that billing history contradicts.” (Id. at 24.) 

Petitioner asserts that “[a] 1500[-]watt space heater that is clocked at 1494 watts 

registers 1.5 [kWh] when used for [1] hour (1494 x 1 hour divided by 1,000); clocked 

at 1080 watts it registers 1.08 [kWh] when used for [1] hour.” (Id.) Thus, this 

arbitrary assignment of potential energy “prejudices the result to favor PECO” and 

is not a fact upon which a ruling can be based. (Id. at 25.) 

The Commission responds that its decision is supported by substantial 

evidence and is consistent with the law and, therefore, is entitled to deference. 

Specifically, the Commission acknowledged that there was an increase in 

Petitioner’s usage during the disputed period but maintains that PECO rebutted 

Petitioner’s evidence through testimony and empirical evidence showing that 

PECO’s equipment was not the cause of the high bills. (Commission’s Br. at 19-

20.) The Commission asserts it properly weighed and credited the evidence 

presented by PECO, which constitutes substantial evidence to support the Order and

Opinion, and it is not for this Court to reweigh the evidence and substitute its 

judgment for that of the Commission. According to the Commission, Petitioner’s 

arguments are based on speculation and conjecture, which are insufficient to support 

her Amended Complaint. (Id. at 21.) 

Pursuant to Section 332(a) of the Code, 66 Pa.C.S. § 332(a), Petitioner, as the 

proponent of the Amended Complaint, bears the burden of proof. This Court has 

stated that, in high bill disputes, “even where the utility can present evidence that it 

has tested the customer’s meter and found it to be accurate, the customer may, 

nonetheless, prove [her] case by circumstantial evidence which would support a 

finding that the metered usage exceeded the actual usage.” Milkie v. Pa. Pub. Util. 

Comm’n, 768 A.2d 1217, 1220 (Pa. Cmwlth. 2001); see also Waldron v. Phila. Elec. 
25

Co., 54 Pa. PUC 98, 1980 WL 140964 (1980). This is referred to as the Waldron 

rule. If the complainant makes out a prima facie case, “the burden of going forward 

shifts to the utility, but the ultimate burden of persuasion remains with the 

complainant.” Milkie, 768 A.2d at 1220. “The Commission must measure the 

weight and credibility of all the evidence,” and merely “because the ratepayer has 

presented a prima facie case does not obligate the Commission to credit this evidence 

or to give it any special weight.”14 Id. “If the utility presents evidence found to be 

of co-equal (or greater) weight with that of the complainant, the complainant will 

not have met [her] burden of proof,” and the Waldron rule is inapplicable. Id. 

In the case sub judice, we discern no error in the Commission’s decision. It 

is undisputed that Petitioner’s electricity bills were high during the November 2017 

through April 2018 period based on her historical billing, which the Commission 

recognized in its decision. However, PECO presented evidence that, if credited, 

would constitute substantial evidence to support the conclusions that there was no 

problem with Petitioner’s meter and that Petitioner’s bills were calculated correctly. 

Technician testified as to his investigation of Petitioner’s high bill complaint and 

that, based on his investigation, Petitioner’s meter was accurate and there was 

nothing to indicate any tampering or problems with the meter. (S.R.R. at 0046b47b.) Technician observed that if the meter was malfunctioning, it was “impossible”

for the meter to later correct itself. (Id. at 0047b-48b.) Technician further testified 

that, given the size of Petitioner’s home and type and number of appliances, the 

usage readings were not unreasonable. (Id.) Manager testified to how the two-way 

communication works between PECO and the meters, as well as to the fact that 

PECO cannot unilaterally change or alter the meter readings, as it appears this is

14 “The Commission, not the ALJ, is the ultimate fact-finder in formal complaint 

proceedings; it weighs and resolves conflicts in the testimony.” Milkie, 768 A.2d at 1220 n.7.
26

Petitioner’s contention. (Id. at 0061b-62b.) Manager also testified to the correlation 

between temperature drops and usage rates concluding that as the temperature drops, 

usage rates increase. (Id. at 0063-64b.) Petitioner did not present evidence that 

rebutted PECO’s evidence. The Commission weighed the evidence presented and 

concluded that, as much of Petitioner’s assertions were based on speculation and 

conjecture, Petitioner did not present evidence that was “substantial or more 

convincing, even by the smallest amount, than the evidence presented by PECO.” 

(See Commission’s Order and Op. at 21.) “Here, the Commission found 

[Petitioner’s] evidence to be of little weight” when compared to PECO’s evidence, 

which constitutes substantial evidence to support the Commission’s decision. 

Evidentiary weight decisions are within “the sole province of the Commission as 

fact-finder, and we will not disturb them on appeal.” Milkie, 768 A.2d at 1220-21. 

As such, there was no error in the Commission’s decision to dismiss the Amended 

Complaint based on its conclusion that Petitioner did not meet her burden of 

persuasion that PECO incorrectly billed her or that PECO violated the Code, its 

tariff, or the Commission’s Regulations or orders. Id. at 1220. 

Petitioner also argues that she had the right to have a prehearing conference, 

of which she was not apprised, and that the ALJ’s failure to hold a prehearing 

conference affected her substantive right to due process. Petitioner maintains that 

not holding a prehearing conference “denies a pro se participant the instruction that 

can be vital to the effective and fair prosecution of her claim.” (Petitioner’s Br. at 

17, 19 (citing Section 333 of the Code, 66 Pa.C.S. § 333; 52 Pa. Code §§ 1.2(c), 

5.222).)15 The Commission responds that it provided Petitioner with due process by 

15 Petitioner also argues that her due process rights were violated when the ALJ refused to 

consider her replies to PECO’s Answers or reopen the record to allow PECO’s Answers to 

(Footnote continued on next page...)
27

giving her a meaningful opportunity to be heard in a meaningful manner. 

(Commission’s Br. at 37.) According to the Commission, the decision to hold a 

prehearing conference in billing disputes is at the discretion of the presiding officer, 

and the ALJ’s decision to not hold a prehearing conference was not an abuse of 

discretion and did not violate the Code or Commission Regulations. (Id. at 37, 41.) 

Reviewing the Code and the Commission’s Regulations, we discern no 

violation of Petitioner’s due process rights by the absence of a prehearing 

conference. As an administrative agency, the Commission is required to provide 

due process to parties appearing before it. Schneider v. Pa. Pub. Util. Comm’n, 479 

A.2d 10, 15 (Pa. Cmwlth. 1984). Due process is satisfied when parties are afforded 

notice and the opportunity to be heard. Id. To that end, the Commission is required 

to fix the time and place for a hearing on a complaint and to serve notice upon the 

parties in interest. Section 703(a), (b) of the Code, 66 Pa.C.S. § 703(a), (b). Once a 

hearing is scheduled and the parties notified, it is incumbent upon the parties to 

appear and participate in the hearing. The decision to hold a prehearing conference 

is within the discretion of the presiding officer on “his [or her] own motion or at the 

request of the party to the proceeding” and “at least one prehearing conference” is 

required only “where the issues are complex or where it appears likely that the 

hearing will last a considerable period of time.” 66 Pa.C.S. § 333(a). While the 

general policy may be to arrange for prehearing conferences so as to “expedite the 

orderly conduct and disposition of the proceedings and to serve the ends of justice 

and the public interest,” the Commission’s Regulations state only that a presiding 

officer “may direct that a prehearing conference be held.” 52 Pa. Code § 5.222(a) 

(emphasis added). This is consistent with Section 333(a) of the Code in that a 

Petitioner’s Interrogatories into the record. We addressed Petitioner’s contentions regarding her 

replies and PECO’s Answers previously and do not address them again. 
28

prehearing conference is necessary to expedite the proceedings in matters where the 

issues are complex or where the hearing will be lengthy. 

Here, Petitioner’s Amended Complaint involved a residential billing dispute, 

a matter unlikely to have issues that were “complex” or would require a hearing that

would “last a considerable period of time.” 66 Pa.C.S. § 333(a). Neither Petitioner 

nor PECO requested to have a prehearing conference in this matter. While Petitioner 

argues she was not personally advised of the potential availability of a prehearing 

conference, the Commission’s Regulations set forth that the ability to request such 

conferences and a pro se party’s lack of understanding or knowledge of the law or 

procedural rules does not excuse a party’s actions that may be to the party’s

detriment. Finney v. Unemployment Comp. Bd. of Rev., 472 A.2d 752, 753-54 (Pa. 

Cmwlth. 1984). Under these circumstances, no prehearing conference was required, 

id., and there was no “waiver” of a “requirement” that “adversely affect[ed] a 

substantive right of” Petitioner, 52 Pa. Code § 1.2(c).16 Petitioner’s Amended 

Complaint was duly scheduled for a hearing, and, after a continuance, the hearing 

was held on October 23, 2019. There, Petitioner was able to introduce exhibits, 

testify, cross-examine PECO’s witnesses, and argue why her evidence should be 

accepted over PECO’s. In short, Petitioner received notice and an opportunity to be 

heard on her Amended Complaint, and, therefore, we discern no due process 

violations by the ALJ or the Commission. 

16 This Regulation states “[t]he Commission or presiding officer at any stage of an action 

or proceeding may waive a requirement of this subpart when necessary or appropriate, if the waiver 

does not adversely affect a substantive right of a party.” 52 Pa. Code § 1.2(c).
29

III. CONCLUSION

Based on the foregoing, we grant in part and deny in part Petitioner’s 

Application for Relief and grant in part and deny in part the Commission’s 

Application to Strike. Additionally, we discern no due process violation or error in 

the Commission’s findings that Petitioner did not meet her burden of showing that 

PECO improperly billed Petitioner for the November 2017 through April 2018 

period or violated the Code, its tariff, or the Commission’s Regulations or orders 

based on the Commission’s evidentiary weight determinations. Therefore, we 

affirm.

_____________________________________

RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Eileen Walden, :

Petitioner :

 :

v. : No. 1335 C.D. 2020

 : 

Public Utility Commission, :

Respondent :

O R D E R

NOW, April 18, 2022, Eileen Walden’s (Petitioner) Application for Relief is

GRANTED as to Exhibits 2 and 7 and is otherwise DENIED, and the Public Utility

Commission’s (Commission) Application to Strike is DENIED as to Exhibits 2 and 

7 and is otherwise GRANTED. The November 19, 2020 Order and Opinion of the 

Commission denying Petitioner’s Exceptions, adopting the Administrative Law 

Judge’s Initial Decision as modified, and dismissing Petitioner’s Amended Formal 

Complaint is AFFIRMED.

_____________________________________

RENÉE COHN JUBELIRER, Judge