IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paula and Charles Hughes, :

:

Petitioners :

:

 v. : No. 827 C.D. 2020

: Submitted: May 7, 2024

Pennsylvania Public Utility :

Commission, :

:

Respondent :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE STACY WALLACE, Judge

OPINION BY JUDGE WOJCIK FILED: August 1, 2024

Paula and Charles Hughes (Consumers), proceeding pro se, seek 

review of the Pennsylvania Public Utility Commission’s (PUC) order denying 

Consumers’ exceptions, adopting an administrative law judge’s (ALJ) initial 

decision, and dismissing their complaint. The PUC determined that Act 129 of 2008 

(Act 129),1 which amended the Public Utility Code (Code),2 mandates the 

installation of smart meters and does not include an opt-out provision. Additionally, 

the PUC found that Consumers did not prove, by a preponderance of the evidence, 

1 Act of October 15, 2008, P.L. 1592, No. 129, 66 Pa. C.S. §§2803, 2806.1, 2807, 2811, 

2813-2815.

2

66 Pa. C.S. §§101-3316.
2

that Intervenor PPL Electric Utilities Corporation’s (PPL) installation of a smart 

meter constituted unsafe or unreasonable service under Section 1501 of the Code, 

66 Pa. C.S. §1501. Consumers assert that the installation of smart meters violates 

their constitutional rights against unreasonable searches and seizures. They further 

contend that the PUC erred and/or abused its discretion by applying an erroneous 

burden of proof and issuing a determination that is not supported by substantial 

evidence. Upon review, we affirm. 

I. Background

In October 2008, the General Assembly amended the Code by enacting 

Act 129. Act 129 amended the Electricity Generation Customer Choice and 

Competition Act3for the purpose of promoting energy efficiency and conservation 

across the Commonwealth. Povacz v. Pennsylvania Public Utility Commission, 280 

A.3d 975, 982 (Pa. 2022) (Povacz II). Through Act 129, the General Assembly 

mandated PPL and other electric distribution companies (EDCs) with more than 

100,000 customers to “furnish smart meter technology.” Section 2807(f)(2) of the 

Code, 66 Pa. C.S. §2807(f)(2). Specifically, Section 2807(f) of the Code provides:

(f) Smart meter technology and time of use rates.--

(1) Within nine months after the effective date of this 

paragraph, [EDCs] shall file a smart meter technology 

procurement and installation plan with the [PUC] for 

approval. The plan shall describe the smart meter 

technologies the [EDC] proposes to install in accordance 

with paragraph (2).

3 Act of December 3, 1996, P.L. 802, 66 Pa. C.S. §§2801-2815 (deregulating electricity 

generation in Pennsylvania and providing customers with the opportunity to select an electricity 

generation supplier).
3

(2) [EDCs] shall furnish smart meter technology as 

follows:

(i) Upon request from a customer that agrees to pay 

the cost of the smart meter at the time of the request.

(ii) In new building construction.

(iii) In accordance with a depreciation schedule not 

to exceed 15 years.

(3) [EDCs] shall, with customer consent, make 

available direct meter access and electronic access to 

customer meter data to third parties, including electric 

generation suppliers and providers of conservation and 

load management services.

(4) In no event shall lost or decreased revenues by an 

[EDC] due to reduced electricity consumption or shifting 

energy demand be considered any of the following:

(i) A cost of smart meter technology recoverable 

under a reconcilable automatic adjustment clause under 

section 1307(b), except that decreased revenues and 

reduced energy consumption may be reflected in the 

revenue and sales data used to calculate rates in a 

distribution rate base rate proceeding filed under section 

1308 (relating to voluntary changes in rates). 

(ii) A recoverable cost.

(5) By January 1, 2010, or at the end of the applicable 

generation rate cap period, whichever is later, a default 

service provider shall submit to the [PUC] one or more 

proposed time-of-use rates and real-time price plans. The 

[PUC] shall approve or modify the time-of-use rates and 

real-time price plan within six months of submittal. The 

default service provider shall offer the time-of-use rates 

and real-time price plan to all customers that have been 

provided with smart meter technology under paragraph 

(2)(iii). Residential or commercial customers may elect to 

participate in time-of-use rates or real-time pricing. The 

default service provider shall submit an annual report to 
4

the price programs and the efficacy of the programs in 

affecting energy demand and consumption and the effect 

on wholesale market prices.

(6) The provisions of this subsection shall not apply to 

an [EDC] with 100,000 or fewer customers.

(7) An [EDC] may recover reasonable and prudent 

costs of providing smart meter technology under 

paragraph (2)(ii) and (iii), as determined by the [PUC]. 

This paragraph includes annual depreciation and capital 

costs over the life of the smart meter technology and the 

cost of any system upgrades that the [EDC] may require to 

enable the use of the smart meter technology which are 

incurred after the effective date of this paragraph, less 

operating and capital cost savings realized by the [EDC] 

from the installation and use of the smart meter 

technology. Smart meter technology shall be deemed to be 

a new service offered for the first time under section 

2804(4)(vi). An [EDC] may recover smart meter 

technology costs:

(i) through base rates, including a deferral for future 

base rate recovery of current basis with carrying charge as 

determined by the [PUC]; or

(ii) on a full and current basis through a reconcilable 

automatic adjustment clause under section 1307.

In turn, Section 2807(g) of the Code defines “smart meter technology”

as follows:

(g) . . . [T]he term “smart meter technology” means 

technology, including metering technology and network 

communications technology capable of bidirectional 

communication, that records electricity usage on at least 

an hourly basis, including related electric distribution 

system upgrades to enable the technology. The technology 

shall provide customers with direct access to and use of 

price and consumption information. The technology shall 

also:
5

(1) Directly provide customers with information on 

their hourly consumption.

(2) Enable time-of-use rates and real-time price 

programs.

(3) Effectively support the automatic control of the 

customer’s electricity consumption by one or more of the 

following as selected by the customer:

(i) the customer;

(ii) the customer’s utility; or 

(iii) a third party engaged by the customer or the 

customer’s utility.

66 Pa. C.S. §2807(g). Smart meters, also known as advanced metering infrastructure 

(AMI) meters, record electricity consumption on at least an hourly basis using radio 

frequency (RF) electromagnetic energy. Povacz II, 280 A.3d at 983-84; Section 

2807(g) of the Code, 66 Pa. C.S. §2807(g). 

Act 129 directed the PUC to “adopt an energy efficiency and 

conservation program to require [EDCs] to adopt and implement cost-effective 

energy efficiency and conservation plans to reduce energy demand and 

consumption” within their service territories. Section 2806.1(a) of the Code, 

66 Pa. C.S. §2806.1(a). After Act 129 took effect, the PUC directed subject EDCs, 

including PPL, to submit plans to the PUC for the deployment of smart meter 

technology within their respective service territories. 

In response, PPL sought and obtained the PUC’s approval to complete 

the deployment and installation of smart meters for its customers within its service 

territory by the end of 2019. PPL notified its electric customers, including 
6

Consumers, of its intent to replace their existing powerline carrier meters with smart 

meters at their residences. Consumers refused to have a smart meter installed. 

On February 4, 2019, Consumers filed a formal complaint with the PUC 

to opt out of a smart meter installation at their residence citing health 

(hypersensitivity to the RF emissions), safety, and privacy concerns. PPL filed an 

answer in response denying that smart meters cause adverse health effects and 

asserting that Act 129 requires PPL to install smart meters for all customers, without 

exception, and that it has the right to terminate service for customers that refuse

installation. 

In September 2019, a hearing before the ALJ ensued. At the hearing, 

Consumers, who appeared pro se, testified and presented 17 exhibits. Consumers’

evidence included medical letters regarding their underlying health conditions and 

an article titled “Stop Smart Meters NY” relating to the safety and privacy of smart 

meters. PPL appeared, represented by counsel, and presented 15 exhibits and 4 

expert witnesses. All exhibits were admitted into evidence. Following the close of 

the record, the ALJ issued an initial decision denying Consumers’ formal complaint

and Consumers filed exceptions.4

By opinion and order dated July 16, 2020, the PUC denied the 

exceptions, adopted the ALJ’s initial decision, and dismissed Consumers’

complaint. The PUC held that Act 129 mandates EDCs, such as PPL, to furnish 

smart meters to all electric customers within its electric distribution service area, 

4

In an attempt to bolster their claims, Consumers attached evidence that was not part of 

the record before the ALJ. The evidence included “Excerpt A - A section about the Federal Trade 

Commission Act from a ‘Consumer Compliance Handbook’ and Excerpt B - Selected pages from 

a Congressional Research Service Report titled ‘Smart Meter Data: Privacy and Cybersecurity’

dated February 3, 2012.” PUC Opinion and Order, 7/16/20, at 15. The PUC disregarded this 

extra-record evidence on the basis that the parties cannot introduce new evidence at the exceptions 

stage. Id.
7

without exception. Act 129 does not provide customers with a right to opt out of 

smart meter installation. However, electric customers may seek an accommodation 

by filing a claim under Section 1501 of the Code, 66 Pa. C.S. §1501, and proving, 

by a preponderance of the evidence, that the installation of a smart meter is unsafe 

and/or unreasonable. The PUC found that Consumers failed to show a conclusive 

causal connection between the low-level RF fields emitted from the smart meter and 

the alleged adverse health effects by a preponderance of the evidence. 

From this decision, Consumers petitioned for review with this Court. 

PPL intervened. At Consumers’ request, this Court stayed the installation of a smart 

meter at their residence pending disposition of three consolidated appeals involving 

similar issues: Povacz v. Pennsylvania Public Utility Commission (Pa. Cmwlth., 

No. 492 C.D. 2019), Murphy v. Pennsylvania Public Utility Commission

(Pa. Cmwlth., No. 606 C.D. 2019), and Randall v. Pennsylvania Public Utility 

Commission (Pa. Cmwlth., No. 607 C.D. 2019). 

On October 8, 2020, this Court decided the three consolidated appeals 

and affirmed in part, reversed and remanded in part, and vacated and remanded in 

part the PUC orders. Povacz. v. Pennsylvania Public Utility Commission, 241 A.3d 

481 (Pa. Cmwlth. 2020) (Povacz I), rev’d in part, aff’d in part, Povacz II. In 

Povacz I, this Court stated:

[W]e affirm the PUC’s rejection of [the c]onsumers’

constitutional challenge. We reverse the PUC’s 

conclusion that it lacks authority to accommodate [the 

c]onsumers’ desire to avoid RF emissions from smart 

meters and vacate the PUC’s determination that such 

accommodation would not be reasonable. We affirm the 

PUC’s determination of the burden of proving harm. We 

affirm the PUC’s findings of fact. We remand this matter 

to the PUC for determinations of whether 

accommodations are appropriate for each of the 
8

[c]onsumers, and if so, what those accommodations 

should be. 

241 A.3d at 494-95. From the Povacz I decision, all parties petitioned for allowance 

of appeal with the Pennsylvania Supreme Court, which was granted. Meanwhile, in 

this matter, we continued the stay pending the Supreme Court’s disposition of the 

Povacz I appeal. 

In Povacz II, the Pennsylvania Supreme Court affirmed in part and 

reversed in part this Court’s decision in Povacz I, thereby affirming the PUC Orders 

underlying the appeals. The Supreme Court concluded that Act 129 mandates EDCs 

to “furnish smart meters to all electric customers within an electric distribution 

service area and does not provide electric customers the ability to opt out of having 

a smart meter installed.” Povacz II, 280 A.3d at 983. “An electric customer with 

concerns about smart meters may seek an accommodation from the PUC or EDC

. . . .” Id. at 983-84 (footnote omitted). However, to obtain an accommodation, the 

customer must prove that the installation of a smart meter violates Section 1501 of 

the Code, which requires utilities to provide safe and reasonable service. Id. To do 

so, the customer must establish a “conclusive causal connection” between RF 

exposure and the claimed health effects by a “preponderance of the evidence.” Id.

at 984. Applying this standard, the Supreme Court determined that the electric 

customers did not prove that installation of a smart meter at their premises violated

Section 1501. Id. As a result, the PUC was not required to prescribe any 

accommodation. Id. Thus, the Supreme Court ordered:

[W]e reverse the Commonwealth Court’s ruling that Act 

129 does not mandate the installation of smart meters. We 

affirm the Commonwealth Court’s conclusion that the 

PUC did not err in finding that [the c]ustomers failed to 

meet their burden of proving, by a preponderance of the 
9

evidence, a conclusive causal connection between RF 

emissions from smart meters and adverse human health 

effects. We reverse the Commonwealth Court’s remand to 

the PUC for consideration of whether [the c]ustomers 

established that smart meter service is unreasonable under 

Section 1501.

Id. at 1014. Following Povacz II, this Court lifted the stay in this matter and directed 

the parties to file briefs. We now consider Consumers’ petition for review.

5

 

II. Issues

We have distilled Consumers’ statement of questions involved into 

three central arguments. First, Consumers assert that Act 129 violates their

constitutional rights arising under the Fourth Amendment of the United States (U.S.) 

Constitution, U.S. Const. amend. IV, and article I, section 8 of the Pennsylvania 

Constitution, Pa. Const. art. I, §8, against unreasonable searches and seizures. 

Second, they contend that the PUC applied an erroneous burden of proof by 

requiring Consumers to establish a violation of Section 1501 of the Code. Third, 

they argue that the PUC’s determination is not supported by substantial evidence.

III. Discussion

A. Unreasonable Search and Seizure

Consumers argue that, because the Pennsylvania Supreme Court ruled 

that Act 129 was mandatory, it follows then that EDCs under the PUC’s jurisdiction 

5 This Court’s review is limited to determining whether the PUC violated a constitutional 

right, committed an error of law, rendered a decision not supported by substantial evidence, or 

violated its rules of practice. Romeo v. Pennsylvania Public Utility Commission, 154 A.3d 422 

(Pa. Cmwlth. 2017). For questions of constitutional law, including whether an individual’s 

constitutional right to be free from unreasonable searches has been violated, our standard of review 

is de novo, and our scope of review is plenary. See Commonwealth v. Leed, 186 A.3d 405, 414

n.4 (Pa. 2018); Commonwealth v. Shabezz, 166 A.3d 278, 285 (Pa. 2017). 
10

are now state actors subject to the constitutional proscriptions against unreasonable 

searches and seizures. According to Consumers, the collection of data that can 

identify what appliances are being used in a person’s home constitutes a warrantless 

search that violates the Fourth Amendment of the U.S. Constitution and article 1, 

section 8 of the Pennsylvania Constitution. Given the constitutional violation, they 

maintain that they should be entitled to opt out of the installation.

In Povacz II, the Supreme Court concluded that “Act 129 is mandatory, 

requiring the system-wide installation of smart meter technology by EDCs, 

including smart meters.” 280 A.3d at 1014. Act 129 “imposes a mandate on EDCs 

to furnish smart meter technology to all electric customers within an electric 

distribution service area, regardless of a customer’s preference.” Id. at 992 

(emphasis added). There is no opt-out provision. Id. at 1014. Although the 

customers in Povacz I raised substantive due process claims, the Supreme Court 

denied allocatur as to any constitutional issues.6 Povacz II, 280 A.3d at 985 n.8. 

The Fourth Amendment of the U.S. Constitution (Fourth Amendment) 

protects “[t]he right of the people to be secure in their persons, houses, papers, and 

effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. 

Similarly, article I, section 8 of the Pennsylvania Constitution, Pa. Const. art. I, §8, 

affords people the same security against unreasonable searches and seizures. See 

Interest of T.W., 261 A.3d 409, 417-18 (Pa. 2021). 

6

In Povacz I, this Court declined to recognize a viable claim regarding a violation of rights 

under the Fourteenth Amendment of the U.S. Constitution, U.S. Const. amend. XIV. 241 A.3d at 

488. Relying on the persuasive reasoning in Naperville Smart Meter Awareness v. City of 

Naperville, 69 F. Supp. 3d 830 (N.D. Ill. 2014) (Naperville I), which addressed the same issue, we 

rejected the customers’ substantive due process argument because they failed to identify an 

arbitrary deprivation of a recognized liberty or property interest. Povacz I, 241 A.3d at 488. 

Because the Supreme Court declined to grant review of any constitutional issues, see Povacz II, 

280 A.3d at 985 n.8, our holding on this issue stands. 
11

A “search” occurs when “an expectation of privacy that society is 

prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U.S. 

109, 113 (1984). “[A]t the [Fourth Amendment’s] very core stands the right of a 

man to retreat into his own home and there be free from unreasonable government 

intrusion.” Silverman v. United States, 365 U.S. 505, 511 (1961). This protection, 

which was previously limited to common law trespass, now encompasses searches 

of the home made possible by “advancing technology.” Kyllo v. United States, 

533 U.S. 27, 35 (2001) (contemplating “imaging technology that could discern all 

human activity in the home”). Any other rule would “erode the privacy guaranteed 

by the Fourth Amendment.” Id. at 34.

“The touchstone of the Fourth Amendment is reasonableness.” Florida 

v. Jimeno, 500 U.S. 248, 250 (1991). Where the data collection is not performed as 

part of a criminal investigation, the courts must balance the intrusion on the 

individual’s Fourth Amendment interests against the promotion of legitimate 

government interest. Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 187-88 

(2004). 

Significant to our analysis here, the Fourth Amendment’s protection 

against unlawful searches and seizures applies to “only governmental action.” 

Jacobsen, 466 U.S. at 113. It follows, therefore, that “the proscriptions of the Fourth 

Amendment and [a]rticle I, [section] 8 [of the Pennsylvania Constitution], do not 

apply to searches and seizures conducted by private [actors].” Commonwealth v. 

Harris, 817 A.2d 1033, 1047 (Pa. 2002) (citing Coolidge v. New Hampshire, 403 

U.S. 443 (1971); Burdeau v. McDowell, 256 U.S. 465 (1921); Commonwealth v. 

Corley, 491 A.2d 829 (Pa. 1985)). It does not apply to searches, even unreasonable 

ones, effected by private actors “not acting as an agent of the Government or with 
12

the participation or knowledge of any governmental official.” Jacobsen, 466 U.S. 

at 113. 

Where the action complained of was taken by a private actor, such as a 

privately-owned utility company, we must examine whether the conduct itself 

involves private or state action. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 

350 (1974). “The mere fact that a business is subject to state regulation does not by 

itself convert its action into that of the State for purposes of the Fourteenth 

Amendment. Nor does the fact that the regulation is extensive and detailed, as in 

the case of most public utilities, do so.” Id. (footnote and citation omitted). 

“[T]he inquiry must be whether there is a sufficiently close nexus 

between the State and the challenged action of the regulated entity so that the action 

of the latter may be fairly treated as that of the State itself.” Jackson, 419 U.S. at 

351. As the U.S. Supreme Court explained in Blum v. Yaretsky, 457 U.S. 991, 1004

(1982): 

The purpose of this requirement is to assure that 

constitutional standards are invoked only when it can be 

said that the State is responsible for the specific conduct 

of which the plaintiff complains. The importance of this 

assurance is evident when . . . the complaining party seeks 

to hold the State liable for the actions of private parties. 

(Emphasis added.)

Pennsylvania courts have historically “rejected the contention that the 

furnishing of utility services is . . . a state function.” Jackson, 419 U.S. at 353 (citing 

Girard Life Insurance Co. v. City of Philadelphia, 88 Pa. 393 (1879); Baily v. 

Philadelphia, 39 A. 494 (Pa. 1898)). In Jackson, the U.S. Supreme Court also 

rejected the contention that a utility is a state actor even where the utility is “a heavily 

regulated, privately owned utility, enjoying at least a partial monopoly in the 
13

providing of electrical service within its territory” and takes action “in a manner 

which the [PUC] found permissible under state law.” Id. at 358. 

Notably, in Povacz I, this Court held that “[c]onstitutional protections 

apply [only] against state actors” and the EDC involved therein, PECO, was “not a 

state actor in relation to its installation of smart meters and provision of electricity 

to its customers.” Povacz I, 241 A.3d at 486 n.9. The Pennsylvania Supreme Court 

did not disturb this finding on appeal. See Povacz II, 280 A.3d at 985 n.8 (declining 

to address any constitutional issues).

Nevertheless, Consumers argue that PPL is operating as a state actor 

under Act 129’s mandate to install smart meters, and they rely on Naperville Smart 

Meter Awareness v. City of Naperville, 900 F.3d 521, 529 (7th Cir. 2018) (Naperville 

II),7for this limited proposition. In Naperville II, customers subject to smart meter 

installation asserted Fourth Amendment violations against the City of Naperville. 

Notably, the City of Naperville owned and operated the public utility that provided 

electricity to the city’s residents. Naperville II, 900 F.3d 524. Because the public 

utility was a government actor, the federal court proceeded to address whether the 

City’s use of smart meters constituted a search and whether the search was 

unreasonable under the Fourth Amendment. Id. at 525-29. The federal court 

ultimately concluded that, although smart meter data collection constituted a search, 

it was not an unreasonable one. Id. Thus, the federal court rejected the customers’

constitutional claims. Id. 

However, unlike in Naperville II, PPL is not a government-owned 

utility. Rather, PPL is a privately owned corporation that is highly regulated, just 

7 We may consider decisions from other states as persuasive authority. See League of 

Women Voters v. Commonwealth, 178 A.3d 737, 803 (Pa. 2018); Commonwealth v. Small, 

189 A.3d 961, 973 (Pa. 2018); Koken v. Reliance Insurance Co., 893 A.2d 70, 83 (Pa. 2006). 
14

like PECO in Povacz I. Although Act 129 mandates PPL and other EDCs to install 

smart meters in their territories, PPL’s compliance with Act 129 does not make it an 

agent of the state. Povacz I. There is no evidence in this case that the government 

controls the operations of PPL or that PPL acts as an agent of the government.

As for the smart meter’s data collection, there is no evidence that the 

government is performing the search or using the data collected. PPL filed a detailed 

AMI Customer Privacy Policy as part of its smart meter plan, which sets forth the 

data to be collected from the smart meters, steps PPL will take to protect the data, 

and how PPL will use the data. The PUC summarized PPL’s evidence:

[Kevin] Durkin’s written testimony explained what data 

the AMI meter collects and how [PPL] protects the data. 

PPL states that [it] does not collect any specific 

information about the use of individual appliances at the 

premises. Rather, [PPL] only collects information about 

the total electric usage at the premises. PPL states that it 

does not share AMI data, except as required or permitted 

by law, regulatory agencies, or governmental authorities. 

. . . [T]here is no record evidence that PPL easily shares 

AMI data with law enforcement or other third parties.

PUC Opinion, 7/16/20, at 24 (citations omitted). PPL collects data on a premise’s 

energy consumption for billing purposes and to determine significant event 

information, such as outages, voltage, heat alarms, and meter tampering alerts. Id. 

Upon review, we conclude that PPL is not acting as an agent of the state when 

installing smart meters. Accordingly, we reject Consumers’ claim that the 

installation of a smart meter violates their constitutional rights under the Fourth 

Amendment and article I, section 8 of the Pennsylvania Constitution. 
15

B. Burden of Proof

Next, Consumers contend that the PUC erred by placing a high burden 

on customers to prove a violation of Section 1501 of the Code by requiring them to 

establish a conclusive causal connection by a preponderance of the evidence. 

According to Consumers, “[n]othing in Section 1501 supports the position that 

[they] were required[] to prove that RF exposure from PPL’s [smart meter] will 

cause harm or that there is a ‘conclusive causal connection.’” Petitioners’ Brief at 

50. Instead, they argue that the PUC should have concluded that “evidence of a risk 

of harm is sufficient to establish a violation of Section 1501.” Id. 

“Although Act 129 does not provide [] electric customer[s] with the 

right to opt[ ]out of the installation of a smart meter at their residence, they may file 

a complaint raising a claim that installation of a smart meter violates Section 1501 

of the Code.” Povacz II, 280 A.3d at 999. 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. . . . .

66 Pa. C.S. §1501 (emphasis added). 

Because an EDC must furnish service that is both safe and reasonable, 

“[t]o carry their burden of proof on a Section 1501 claim, [] smart meter 

challenger[s] may be required to present medical documentation and/or expert 

testimony demonstrating that the furnishing of a smart meter constitutes unsafe or 

unreasonable service in violation of Section 1501 under the circumstances 

presented.” Povacz II, 280 A.3d at 1000. Under Act 129, “an EDC cannot be 
16

required to provide accommodation without the finding of a Section 1501 

violation.”

8

 Id. at 1014. 

To satisfy this burden, the Supreme Court held that customers must 

establish a “conclusive causal connection” by a preponderance of the evidence 

standard. Povacz II, 280 A.3d at 1006. The Supreme Court explained:

“Conclusive causal connection” means that the proffered 

evidence must support the conclusion that a causal 

connection existed between a service or facility and the 

alleged harm. It is not possible for evidence that is 

inconclusive to be sufficient to meet the preponderance of 

the evidence standard. Inconclusive means that the 

evidence does not lead to a conclusion of a definite result 

one way or the other. While the preponderance of the 

evidence standard is not stringent, it does require that the 

plaintiff’s evidence ever so slightly (like, with the weight 

of a feather) supports the plaintiff’s contention. Evidence 

that does not support a conclusion (or is inconclusive) 

cannot meet that minimal burden . . . . Thus, where 

scientific evidence is required to establish the safety of a 

service or facility, use of the evidentiary standard of 

‘conclusive causal connection’ to assess the evidence is 

correct.

Id. at 1006-07 (emphasis added) (internal citations omitted). In short, customers 

“need to prove, by a preponderance of the evidence – with expert opinion within a 

reasonable degree of certainty – that the service or facility is unsafe and that a causal 

connection exists between the allegedly unsafe service or facility and harm, either 

8 As the Supreme Court noted: “This holding does not preclude an electric utility from 

providing a reasonable accommodation to an electric customer in the absence of a [S]ection 1501 

violation pursuant to a customer service policy.” Povacz II, 280 A.3d at 984 n.5. However, the 

Supreme Court made clear that to require an accommodation, a violation of Section 1501 must be 

established. Id. at 1014. 
17

to the public at large or to specific individuals.” Id. at 1007. Upon review, the PUC 

did not err in applying this burden. 

C. Substantial Evidence

Lastly, Consumers assert that the PUC’s findings are not supported by 

substantial evidence. They contend that the PUC erred by not accepting their 

evidence and instead accepting PPL’s “extreme and unreasonable position” that RF 

exposure from smart meters is incapable of causing harm. Petitioners’ Brief at 49. 

According to Consumers, reliable scientific evidence clearly shows that RF exposure 

from smart meters may be harmful to persons, like Consumers, who have a 

hypersensitivity to RF. 

The PUC is the ultimate finder of fact in formal complaint proceedings. 

Milkie v. Pennsylvania Public Utility Commission, 768 A.2d 1217, 1220 n.7 (Pa. 

Cmwlth. 2001); Section 335 of the Code, 66 Pa. C.S. §335. As factfinder, the PUC 

is empowered to review record evidence, make credibility determinations, and 

accord evidentiary weight. Milkie, 768 A.2d at 1221; Verizon Pennsylvania LLC v. 

Pennsylvania Public Utility Commission, 303 A.3d 219, 239 (Pa. Cmwlth. 2023). 

When reviewing a decision of the PUC, an appellate court “should neither substitute 

its judgment for that of the PUC when substantial evidence supports the PUC’s 

decision on a matter within the PUC’s expertise, nor should it indulge in the process 

of weighing evidence and resolving conflicting testimony.” Lehigh Valley 

Transportation Services, Inc. v. Pennsylvania Public Utility Commission, 56 A.3d 

49, 56 (Pa. Cmwlth. 2012). Substantial evidence is “relevant evidence which a 

reasonable mind would accept as adequate to support the conclusion reached.”

Township of Exeter v. Zoning Hearing Board of Exeter Township, 962 A.2d 653, 
18

659 (Pa. 2009) (citation and quotation omitted). The PUC’s findings are conclusive 

where they are supported by substantial evidence. Hess v. Pennsylvania Public 

Utility Commission, 107 A.3d 246, 258 n.7 (Pa. Cmwlth. 2014).

As discussed above, to establish a violation of Section 1501, 

Consumers “need[ed] to prove, by a preponderance of the evidence – with expert 

opinion within a reasonable degree of certainty – that the service or facility is unsafe 

and that a causal connection exists between the allegedly unsafe service or facility 

and harm, either to the public at large or to specific individuals.” Povacz II, 280 

A.3d at 1007. “Whether a causal connection exists between RF emissions and 

adverse health effects involves explanations and inferences not within the range of 

ordinary training, knowledge, intelligence and experience.” Id. (citation and 

quotation omitted). Expert evidence is required. Id. 

In Povacz II, the parties presented competing expert testimony. 

“Although [the c]ustomers claimed individualized injury based on exposure to RF 

emissions, their expert evidence fell short of proving by the preponderance of the 

evidence that [PECO] was responsible or accountable for the problem described in 

their complaints.” 280 A.3d at 1008. PECO challenged the customers’ evidence 

with expert testimony, which the PUC found persuasive. One expert testified, “to a 

reasonable degree of scientific certainty, that there is no reliable scientific basis to 

conclude that exposure to RF emissions from a smart meter can cause any adverse 

biological effects in people, including [the c]ustomers.” Id. at 1001. Another PECO 

expert testified, “based upon his own evaluation of whether RF emissions from smart 

meters can cause, contribute to, or exacerbate the conditions described by [the 

c]ustomers,” and “to a reasonable degree of medical certainty, that there is no 

reliable medical basis on which to conclude that RF emissions from smart meters 
19

caused, contributed to, or exacerbated or will cause, contribute to, or exacerbate any 

of their self-reported symptoms or conditions.” Id. Based upon the credited 

evidence, the PUC determined that the customers failed to satisfy their burden. Id. 

Like the customers in Povacz II, Consumers similarly failed to prove 

that the installation of smart meters at their residence would constitute unsafe or 

unreasonable service in violation of Section 1501 of the Code. Although Consumers

testified and presented medical letters describing their health conditions and the 

health conditions of family members and claimed those conditions would be 

exacerbated by exposure to a smart meter, they did not present expert testimony to 

support their claims. Instead, they relied upon an article to establish a causal 

connection between the low-level RF fields from a smart meter and adverse health 

effects, titled “Stop Smart Meters NY.”

9

 However, the PUC found that the article 

constituted “unreliable hearsay evidence” because the author was not available for 

cross-examination at the hearing.10 PUC Opinion at 11, 19-21. The PUC was not 

persuaded by Consumers’ lay opinions as to the purported health effects that RF 

emissions from smart meters would cause. Id. at 11.

Even if Consumers met their threshold burden, the PUC found that 

PPL’s credible expert evidence successfully rebutted any premise that the 

9 On appeal, Consumers again attempt to rely on extra-record evidence in support of their 

claims. See Petitioners’ Brief at 22, 32-33, 42, 49, 50, 52-57. However, this Court “cannot 

consider new evidence, and instead, must rely upon the evidence contained in the record certified 

by the agency.” Weaver v. Pennsylvania Board of Probation and Parole, 688 A.2d 766, 773 (Pa. 

Cmwlth. 1997). 

10 Although the “‘technical’ rules of evidence do not limit administrative hearings, where 

all relevant evidence of reasonably probative value is admissible,” Gasparro v. Pennsylvania 

Public Utility Commission, 814 A.2d 1282, 1284 (Pa. Cmwlth. 2003), this does not undermine the 

PUC’s authority, as factfinder, to assign evidentiary weight to the evidence. Milkie, 768 A.2d at 

1221.
20

installation of the PPL smart meter could cause adverse health effects or exacerbate 

Consumers’ underlying health conditions. Specifically, Mark Israel, M.D. (Dr. 

Israel), a medical expert, testified that “claimed symptoms related to 

Electromagnetic Hypersensitivity (EHS) are more accurately described as Idiopathic 

Environmental Intolerance (IEI), in which ‘idiopathic’ means ‘cause unknown.’” 

PUC Opinion at 11. The PUC found that Dr. Israel testified to a reasonable degree 

of medical certainty that there is no reliable medical basis to conclude that RF fields 

from the PPL smart meter will cause or contribute to the development of illness or 

diseases. Id.

In addition, Christopher Davis, Ph.D. (Dr. Davis), a professor of 

electrical and computer engineering with a Ph.D. in Physics, testified that the PPL 

smart meter would not cause adverse health effects. He testified that the levels of 

RF fields from the PPL smart meters are 98,000 times lower than the RF exposure 

safety limits established by the Federal Communications Commission (FCC).11 PUC 

Opinion at 12. He also testified that the RF fields from the PPL smart meter are 

much lower than typical sources such as cell phones, which can be over 260,000 

times higher than a smart meter. Id. at 18. Persuaded by PPL’s expert evidence, the 

PUC concluded that there is no reliable medical basis to conclude that RF fields from 

the PPL smart meter would cause, contribute to, or exacerbate any of the symptoms 

claimed by Consumers, or any other adverse health effects. PUC Opinion at 20. 

As in Povacz II, the PUC in this case found that the evidence of 

potential harm was inconclusive and determined that Consumers failed to sustain 

11 The PUC noted that the FCC has determined safe public exposure levels for RF fields 

from devices that transmit RF signals, such as the smart meters. PUC Opinion at 11. Those limits 

are based on evaluations of the body of scientific research on RF fields and were adopted in 

consultation with other federal agencies, including the Food and Drug Administration and the 

Environmental Protection Agency. Id. at 11-12. 
21

their burden of proof. The PUC weighed the evidence presented and found that 

Consumers’ lay testimony regarding the potential harm from smart meters was 

outweighed by the contrary expert evidence. Such determinations are the sole 

province of the PUC as factfinder, and we will not disturb them on appeal. See 

Milkie, 768 A.2d at 1221. Upon review, we conclude that the PUC’s findings are 

supported by substantial evidence and support the conclusion that no causal 

connection exists between smart meters and the alleged harm. 

IV. Conclusion

Accordingly, we affirm the PUC’s order.

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Paula and Charles Hughes, :

:

Petitioners :

:

 v. : No. 827 C.D. 2020

: 

Pennsylvania Public Utility :

Commission, :

:

Respondent :

O R D E R

AND NOW, this 1

st day of August, 2024, the order of the Pennsylvania 

Public Utility Commission, dated July 16, 2020, is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge