J-A12013-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PECO ENERGY COMPANY, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

FIRST MONTGOMERY PROPERTIES, LTD., 

THE FAIRWAYS APARTMENTS 

ASSOCIATES, L.P., FAIRWAYS 

APARTMENTS G.P., INC., FMP/LAKESIDE 

ASSOCIATES, L.P., AND FMP/LAKESIDE 

PROPERTIES, INC.,

Appellants No. 2100 EDA 2015

Appeal from the Judgment Entered August 20, 2015

In the Court of Common Pleas of Chester County

Civil Division at No(s): 2010-04274-CA

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 30, 2016

First Montgomery Properties, Ltd. (FMP), The Fairways Apartments 

Associates, L.P., Fairways Apartments G.P., Inc., FMP/Lakeside Associates, 

L.P., and FMP/Lakeside Properties, Inc. (collectively Appellants) appeal from 

the judgment entered in favor of PECO Energy Company (PECO) in the 

amounts of $109,612.61 and $27,118.76 against Appellants, jointly and 

severally, plus interest. We affirm. 

PECO filed this collection action against Appellants, who are the 

owners of residential rental properties, to recover payment for utility 

____________________________________________

*

Former Justice specially assigned to the Superior Court.
J-A12013-16

- 2 -

services it supplied to Appellants’ tenants.1 Following a bench trial that 

resulted in a verdict in favor of PECO, Appellants filed post-trial motions, 

which were granted to the extent that the verdict was adjusted to include 

joint and several liability. See Trial Court Order, 6/9/15. Appellant’s other 

post-trial motions were denied. 

Appellants appealed to this Court and submitted a concise statement 

of errors complained of on appeal in response to the court’s order. See

Pa.R.A.P. 1925(b). The trial court issued an opinion on September 2, 2015, 

that addressed the issues raised by Appellants. The court’s opinion relied 

extensively on a lengthy footnote contained in its previously issued June 9, 

2015 order that addressed all of the issues raised by Appellants in this 

appeal. 

In addressing Appellants’ issues, we are “limited to determining 

whether the trial court’s findings are supported by competent evidence, 

whether errors of law have been committed, or whether the trial court’s 

determinations demonstrate a manifest abuse of discretion.” McShea v. 

City of Philadelphia, 995 A.2d 334, 338 (Pa. 2010). Moreover, 

[w]hen this Court entertains an appeal originating from a nonjury trial, we are bound by the trial court’s findings of fact, 

unless those findings are not based on competent evidence. The 

____________________________________________

1

In 2003, Appellants had entered into a contract with ConServe to handle 

billing for PECO’s services. The deficient payments to PECO arose as a result 

of ConServe’s continuing to bill Appellants’ tenants, while stopping its 

payments to PECO in 2008. 
J-A12013-16

- 3 -

trial court’s conclusions of law, however, are not binding on an 

appellate court because it is the appellate court’s duty to 

determine if the trial court correctly applied the law to the facts. 

Id. 

We have reviewed the extensive certified record, the briefs of the 

parties, the applicable law, and the thorough and well-crafted opinion 

authored by the Honorable Edward Griffith of the Court of Common Pleas of 

Chester County, dated September 2, 2015. We conclude that Judge 

Griffith’s comprehensive opinion properly disposes of the issues presented 

by Appellants on appeal and we discern no abuse of discretion or error of 

law. Accordingly, we adopt Judge Griffith’s opinion as our own and affirm 

the judgment on that basis.

Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/30/2016
1157(a) 

. . . . . . electrical service .. delivered by PECO to 'resldentlal rental properties owned by 

Defendants. Following a· bench trial, a declslon was entered on February 4, 2015 

In favor of Plaintiff, PECO Energy Company. Thereafter, Defendants filed a posttrial motion. The order entered June 9, 2016 granted Defendants some post-trlal 

relief, specifically, the award was restated to take into account the Joint and· 

several liability of the various defense entitles for the debt owed to PECO; 

however, most of the relief Defendants sought post-trial was denied." The order 

entered March 18; 2014 had denied Defendants' rnotlon for summary judgment. 

Because. the foomote to the June 9, · 2015 Order addresses the issues 

preserved by Defendants in their Statement of Matters Complalned of on Appeal, 

we reproduce the footnote here2 forthe 'convenlence of the reviewing court: 

This is a· collection acflon brought by Plaintiff, · PECO Energy 

Cor;npany 1("PECQ11)1 to recover sums for utility. services, electric· 

1 Erroneously stated as July 9, 2016 In the Notice of Appeal. 

2 Typographical errors have been corrected. . 

OPINIQN 

Defendants, First Montgomery Properfles, Ltd., The Fairways Apartments 

Associates, L.P., Fairways. Apartments ·G.P.,· lnc., FMP/Lakeside Associates, 

LP., and FMP/Lakesjcte Properties; · Inc. (collectlvely, 'Defendants"), have 

appealed from ord~rs entered June 9, 201511nd March 1·8, 2014 .. 

Plaintiff, PECO ·Energy Company.' brought this action to recover sums for 

. v .. 

FIRST MONTGOMERY PROPERTIES, 

· LTD., individually and t/a FIRST 

MONTGOMERY GROUP, THE 

FAIRWAYS APARTMENTS·. 

ASSOCIATES, LP;, individually and t/a 

FAIRWAYS APARTMENTS, FAIRWAYS 

APARTMENTS G.P., INC., 

FMP/LAKESIDE ASSOCIATES, LP. 

in~i¥1dually and t/a MELROSE STATION 

APARTMENTS and FMP/LAKES]DE 

PRO.PERTIES, INC. 

Defendants 

IN THE GOURT OF COMMON PLEAS 

CHESTER COUNTY, PENNSYLVANIA 

NO. 2010-04274 

: CIVILACTION-LAW 

PECO ENERGY COMPANY 

· Plaintiff 

Circulated 08/12/2016 08:49 AM
1158(a) 

2 

and gas, that PECO delivered to resldential rental properties owned 

by. Defendants, First Montgomery Properties, Ltd., lndlvldually and 

tla First Montgomery Group ("First Montgomery"), The Fairways 

Apartments Associates, LP., Individually and t/a Falrways 

Apartments, Fairways Apartments G.P.1 Inc., FMP/Lakeslde 

Associates, L.P. Individually and· t/a Melrose Station Apartments 

and FMP/Lakeside Properties, Inc. · . · 

Defendants operate apartment complexes, Including The · 

Fairways Apartments and Townhomes ("the Fairways Apartments") 

and · Melrose Station Apartments· ("the Melrose 

Apartme.nts")(collectlvely, "the Apartment Complexes"). This action 

concerns the collection of eighteen past due accounts, fourteen at 

.the Fairways Apartments and four at the Melrose Apartments. 

On June 24, 2003, First Montgomery entered Into a contract 

with Conserve Energy ("Conserve") to manage billing for PECO 

·s.upplled utlllty services to the Apartment Complexes: 

Before June 24, 2003, tenants of the Apartment Complexes 

were billed by and paid PECO for utility servlces. . 

Subsequent to June 24, 2003, tenants of the Apartment 

Complexes were billed by and paid Conserve for utility services. 

To facilitate the transition to Conserve as a billing agent, PECO's 

metering of Individual tenant's units was ended and PECO Installed 

master meters at the Apartment Complexes. Electrlclty delivered by 

PECO to the master meters was routed. through underground 

transformers Installed by. Conserve and then delivered to individual 

tenant's units, where Conserve had -Installed their own metering 

equipment. Conserve was responslole for paying PECO for 

electricity delivered to the master meters. . 

Defendants, as owners/operators of the Apartment Complexes, 

were the rate payers or customers of PECO at all times. First 

Montgomery directed· PECO to cooperate wlt.h its agent, Conserve, 

In setting up a master meter/master account system at the 

Apartment. Complexes. First Montgomery directed PECO to send 

bills for utility services to Conserve. · 

In or about February, 2008, whlle still collecting payments from 

the tenants, Conserve stopped paying PECO and Defendants' 

accounts with PECO. fell Into arrears. On April 5, 2010, PECO 

commenced this action for breach of contract and · unjust 

: enrichment. At trial, PECO established that when suit was 

commenced the fourteen accounts as the Fairways Apartments had 

an unpaid balance of $109,612.61 and the· four accounts at the 

Melrose Apartments had an unpaidbalance of $27,118.76. These 

balances were cornprlsed of unpaid charges for utilities as well as 

late payment charges that posted monthly. 

There had been prior litlgatlor:i between PECO and the Fairways 

Apartments defendants, specltlcally, First Montgomery Properties, 
1159(a) 

3 

First Montgomery Group 

Account Premlse Address Balance as of Current Due Date 

Number 1/12/09 ·Bill 

11033-0142? 400 MONTGOMERY BLVD. G3BTIIORNDALB PA 193?2 $19.284.09 $2103.92 02/ffllOO 

38882-00600 O OVERLEAF DR. 040 TIIORNDALB PA 193?2 s122ss.n $1 7?4.20 O'lJOOI09 

35?88-02226 38SKYVIBWLN F4DTH0RNDALEPA 193?2 · $J6 393.69 Sl?92.?6 02/02/09 

26.S0?-01100 OGREBNDIUARLN. 02DTIIORNDALBPA 193?2 $JS 266.48 SI 466.S8 . ffllffll09 

14128-01908 200 MONTGOMERY BL VD. A3F THORNDALE PA 193?2 $12,443:SS $1122.44 02/02/09 

45068-0080? OTURTLBPOINTLN GSETHORNDALBPA 193?2 . $1?0?6.80 $1803.58 02/02/09 

4 I 975,00802 O TURTLBPOINfLN, H40 TIIORNDALE PA 193?2 $16 64l.S3 $1.894.24 (f)J02/09 

45069·00600 O BLUFF RD. H4F 11-IORNDALE PA 193?2 $S 829,39 sm.2s W02109 

48161.00200 · O BLUFF RD H48 THORNDALE PA 193?2 $8 986.<.iS SI 097.?9 02/0'}/00 

48161i<ll?08 O FOOTHILL TRL, ASO THORNDALE PA 193?2 . $?,4?2.20 $9'45.93 wwoo 

S 1253-01408 OBIUFFRD HSRTHORNDALBPA 193?2. $? 390.66 · $841.64 0?Kl1.,-\)9 

60531-01608 O HORSESHOE DR. A48 THORNDALE.PA 193?2 S? sn.n S99S.OS 02(02/09 

63623-0 I 60 I O GOLFERS WAY. "B3E TIIORNDALE PA 193?2 $8 ?S?.60 S81?.2S (f)j(f)J09 

9?630·00200 2THORNDALEPL B2DTIIORNDALBPA i93?2 $8 38?.SS $8S3.2S 02/02109 

Sl63,7S8.?I $18,280.88 

· Ltd., The Fairways Apartments Associates, LP., Fairways 

Apartments· G.P., inc., FMP/Fairways Associates, L.P. and 

FMP/Falrways, Inc. ("Prior Litigation"). On February 12, 2009, a 

. settlement agreement resolved the Prior Litigation f'the .. Settlement _ . Agreement"). The Prior Litigation concerned fourteen Fairways 

Apartments' accounts, each separate and distinct from the eighteen 

accounts Involved in the current-litigation. · 

Following a bench trial on January 13, 2015 and entry of our 

verdict, Defendants filed posHrlal motions, which we now address. 

Damages ewera: . · We found merit In Defendants' claim that the damages award· was- lnc.orrectly stated. Our order was amended to 'accurately state 

Defendants' liability. · 

Exclusion of evidence of the Settlement Agreement: 

· On PECO's motion In limine, evidence of the Settlement 

Agreement was precluded from trial. Defendants contend that the 

Settlement Agreement contains a general release- that bars the 

claims asserted in this action and should have been admitted at 

.trial. . 

In the Prior Litigation, PECO had sought the appointment of a 

·receiver to collect $163,758.71 In past· due utility bills at the 

Fairmont Apartments. The Settlement Agreement recites: 

WHEREAS, as of January 12, 2009, PECO Energy alleges 

that First Montgomery owes PECO Energy the amount of 

$163,758.71 for utility service provided to First Montgomery 

under the account numbers referenced In Exhibit A (the 

"Debt''); 

(Settlement Agreement, p.1) Exhibit A, which defines "the Debt" 

that Is the subject of the Settlement Agreement, consists solely of 

this chart: · 
1160(a) 

4 

The release provides: 

1. Mutual Release~ 

A. Upon receipt of the final payment referenced In paragraph 

3 herein, PECO Energy releases and forever discharges First 

Montgomery, Its successors and assigns, officers, directors, 

agents. employees of and from any and all manner of 

actions and cause of action in law or equity; known or 

unknown (including but not limited to the filing of a complalnt 

before the Pennsylvania Public Utllity Commission or the 

Pennsylvania State Attorney General). and Including those 

which were or could have been asserted· or which PECO 

Energy ever had, now has, or ever will have against First 

Montgomery arising out of or In connection with the Debt.· 

(Settlement Agreement, p. 1) . 

i The entire release is qualified by the final clause, "arising out of 

.or in connection with the Debt." The "Debt" Is defined as fourteen 

specific Fairmont Apartment accounts, Tlie "Debt" is separate from 

· the eighteen accounts sued on In the within action, which Include 

four Melrose Apartment accounts. The release was specifically 

limited to the accounts defined by account number and account. 

balance as the "Debt", Defendants would have us Ignore this 

qualiflcatlon and read the release as encompassing all claims that · PECO could have brought at the time of the settlement, whether or 

not such. claims involved Fairmount Apartment accounts or the 

same parties. 

The Settlement Agreement is · unambiguous and clearly 

ldentltles and narrowly defines the "Debt" released. Nothing In the 

Settlement Agreement suggests that the "Debt" was Intended to be 

expanded beyond the definition set forth at Exhibit A. "When 

construing agreements Involving clear and unambiguous terms, this · 

.court need only examine the writing itself to give effect to the 

parties['] understanding. The court must construe the contract only · 

as written and may' not modify the plain meaning of the words. 

under the guise of Interpretation. When the terms of a written 

contract are clear, this Court wlll not re-write it to give it a 

construction in conflict with the accepted and plain meaning of the 

languaqe used." Acme Markets. lnc. v. Federal Armored· Exp., Inc .• 

437 Pa.Super. 41, 648 A.2d 1218, 1220w1221 (Pa.Super.,1994). 

(citations omitted). Furthermore, the "effect of a release Is .to be 

determined by the ordinary meaning of its language." Republic Ins. 

Co. v, Paul Davis Svstems of Plttsbun:1h South. Inc. 543 Pa. 186, 

670 A.2d 614, 615 (Pa., 1995). Having determined that the release 

was limfted on ltsIace to the claims raised in the Prior Litigation. we 

concluded that the Settlement Agreement was of no probative 

. value to the claims pending In the within action, which derived from 
1161(a) 

·5 

separate accounts and balances and did not arise out of or In 

connection with the "Debt". 

Defendants also sought to lntroduce evidence of the Settlement 

Agreement to counter trial ·testimony of PECO!s witness that .PECO 

had ·tried to "reach out to negotiate payment arrangements" but 

were "unable to negotiate payment." (N.T. 9:6·10) Defendants 

expressed .concern that such statements were prejudicial. 

However, because this was a bench trial, we can assure 

Defendants that these comments were disregarded and played no 

part in our decision. · 

Formation of a confr(tQI: · Defendants claim that PECO failed to establish the essential 

tenns of a contract, in this case the Tariff. However, a Tariff 

creates a contract and by accepting utility service delivered through 

master meters to its properties, Defendants agreed to abide by the 

Jarlffs rates, rules and regulations. . 

Tariffs, of course, can include schedules of rates, and all 

rules, regulations, practices or contracts Involving rates and 

have the force of law and are binding on both the utility and 

Its· customer. Behrend v. ·sell Tel§phone Company, 242 

Pa.Superlor Gt. 47, 363 A.2d 1152 (1976). And, In E.fil! 

Telephone Co .. v. Pennsvlvania Public Utilitv Commission, 

53 Pa.Commonwealth Ct. 241, 244, 417 A.2d 827, 828~29 

. · (1980), this Court construed Section 1303 of the Code and 

stated that "(t)here can be no lawful rate except the last taritf 

published as provided. by law .... Further, It is well established 

that In the absence of an exception by the Commission, a 

public utility may not charge any rate for services other than 

that lawfully tariffed .... " (Citations omitted, emphasis In 

original.) It Is well~settled In Pennsylvania that: 

Contracts for the service of utilities are presumed to 

have been made subject to the police power of the 

state ... , and it Is beyond the power of the contracting 

.partles . to fix rates or provide for service 

permanently.... (T)he Public Utility law supplant(s) 

any agreement tn so far as rates are Involved 

between the consumer and the utility. (Citations 

omitted, emphasis added.) 

Brockwav Glass Co. v. Pennsylvania Public Utility Commission, 63 

Pa.Cmwlth. 238, 437 A.2d 1067, 1070 (Pa.Cmwlth.;1981)(citatlons 

omitted). Tariffs are not mere contracts, but have the force of law 

and are binding on the consumer and the utlllty. Stiteler y. Bell Tel. 

· QQ. 32 Pa.Cmwlth. 319, 379 A.2d 339,· 341 (Pa.Cmwlth. 1977). 

Regardless of the evidence PECO presented to support the terms 

of the Tariff, the Tariff applies by operation of law and Defendants, 
1162(a) 

6 

by accepting utility service, and are bound to pay PECO In 

accordance with the terms of the Tariff In effect at the time the 

charges were Incurred. 

Defendants contend that PECO failed to establish liability for 

any defendant other than First Montgomery. 

That The Fairways Apartments Associates, L.P., lndfvidually . 

and t/a. Fairways Apartments and Fairways· Apartments G.P., Inc. 

operate -the Fairways Apartments· was admitted by Defendants in 

t~e pleadings. (Complaint and Amended Answer. ,-J,-J 4-7, 20, 25) 

The Utility Services Agreement entered into by The Fairways 

Apartments Associates, L.P. 'and Conserve describes The 

fairways Apartments Associates, LP. as the "owner" who "owns 

and operates" the Fairways Apartments. · (Exh. P-52, p.1) The 

Utility Services Agreement· also recites that it rs the "owner" who . 

purchases electric energy from the utility. (Exh. P-52, Exh. 0, p. 1) 

That FMP/Lakeside Associates, LP.. Individually and t/a 

· Melrose Station Apartments and FMP/Lakeside Properties,. Inc. 

operate the Melrose Apartments was admitted by Defendants ·in the · 

pleadlngs. (Complaint and Answer, 11118-111 27, 32) 

Lisa Hofland, a PECO business analyst working in collections, 

testified that all of the Defendants were customers/account holders. 

(N.t. a:2·-15, 13:8-11.) On cross-examination, Ms. Holland was 

never questioned. about her identification of the Defendants as the 

parties responsible for the eighteen accounts at issue. Based upon 

Defendants' admissions In pleadings and the evidence as stated, 

we concluded that all of the Defendants had liability for specflc 

accounts as stated in our decision. 

ConSe,ve as agent: · 

. Throughout thls lltigatlon, Defendants have attempted to 

distance themselves from Conserve. However, it was Defendants 

who brought Conserve into its relationship with PECO and directed 

PECO to communicate and cooperate with Conserve as "our agent 

In our metering and bllllng service program" at the Apartment 

Complexes. (Exh. P-10) 

On September 28, 2004, Conserve sent a letter to PECO 

identifying itself ·as the "accounts management agent for First 

Montgomery Group" and req(1estlng the creation of a master 

account for summary billing for the Fairways Apartments. (Exhs. Pa, 0-E) On the same day. ConServe. sent a second letter to PECO 

.identifying itself as the "accounts management agent for First 

Montgomery Group" and requesting the creation of a master 

account for summary billing for the Melrose Apartments. (Exhs. P9, 0-F) In both instances, Conserve directed 'PECO to send its 

bills to Conserve at a Minnesota address. 

On October -15, 2004, First Montgomery sent a letter to· PECO 

· stating: 
1163(a) 

7 

... we have retained Conserve Corporation to be our agent 

In our metering and billing services program [at the 

Apartment Complexes.] ... Please be advised that Conserve 

has . full authorization to work with yoy regarding .billing 

Issues on the above properties. In addition, we expect that 

you will honor ConServe's request as ounlnec In the 

.attached letters from Conserve [Exhs. P-8/D-E and P-9/D- 

. F]. Any communication regarding this program and the 

implementation process should be directed to Conserve as 

~ur agent In this with us copied .. . · · 

(Exhs. P-10, D-G)(N.T. 89:12-18) 

PECO complied with First Montgomery's request and began to 

send bills· for utllHy services at the Apartment Complexes to the 

Minnesota address. As early as August, 2007, Defendants knew 

payments for utility accounts at the Apartment. Complexes were In 

arrears; however, Defendants chose to believe Conserve'e 

explanations, whic)l placed blame on PECO. (N.T. 91 :5-11, 

116:17-117:2, 118:23-119:2; Exhs. P-11, D-H) Defendants 

continued 'to work with Conserve, even though Conserve was 

never.able to produce a reconciliation of the accounts. (N.T. 86:2-4, 

117:5-8, 91 :23-92:5, 118:1-2) On May 14, 2008, First Montgomery 

sent a letter to Conserve terminating their contract. (N.T. 93:3-6, 

118:16-20, Exh. D-1) At about the same time, First Montgomery 

directed PECO to send bills for utility services at the Apartment 

Complexes to Its New Jersey offices. PECO again complied with. 

First Montgomery's Instructions. 

Based upon First Montgomery's conduct and representations to. PECO, we concluded that Conserve was First Montgomery's' 

agent. · · 

. Defendants also argue that they are not· liable for the debt 

ConServe's criminal activity created because Conserve acted 

outside the. scope of Its agency when it stole funds collected from 

tenants at the Apartment· Complexes. However, ··PECO's 

contractual or Tariff relatlonshlp was With Defendants, not 

Conserve, and Defendants remain liable for the debt. "[A] principal 

Is liable to Innocent third parties for the frauds, deceits, 

concealments, misrepresentations, torts, negligences and other 

malfeasances or mtsfeasances of his agent committed In the 

course of his employment, although the principal did not authorize, 

justify or participate in, or indeed know of, such misconduct, or 

even· if he forbade the acts or disapproved of them." Aiello v. Ed 

Saxe~. Real Estate, Inc., · 508 Pa. 553, 499 A:2d 282, 

287 (Pa., 1985). Defendants authorized PECO to interact with 

Conserve as their agent and PECO complied with PECO'~ 

Instructions. The· relatlonshlp between Defendants and Conserve 

does not in any way limit or reduce Defendants liability to PECO. 
1164(a) 

8 

Admission of PECO's hlJJJng summaries: 

-- Defendants flied a motion in llmlne to exclude PECO's billing 

summaries as evidence. at trial on the basis that the billing 

summaries are not the best evidence of the debt. This motion was 

denied and at trial PECO introduced Jts. business records of the 

eighteen contested accounts, which consisted ·of Activity·. 

Statements, designated as billing summaries by the parties, as well 

as B!lls from 2008 through 4010. Biiis predating. 2008 were 

unavailable, having been destroyed by PECO In the usual course of 

business pursuant to its retention pol!cy. 

Pa.RE., Rule 1004 allows a party to use Its business records 

when origlnal Invoices are unavailable and provides: 

An original is not required and other evidence of the content 

of a writlng1 recordlnq, orphotopraph is admissible If: 

(a) all_ the originals are lost or destroyed, and not by the 

proponent actlnq in bad faith; 

Pa.RE., Rule 1004; 

Bills for· each account, dating from October, ;2008 for all but 

three accounts through October, 201 o, were admitted at trial, Biiis 

for the remaining three accounts; dating from December, 2008 

through October, 2010, were admitted. (Exhs. P-33 - P-50) In 

addition, Activity Statements for each account were admitted. 

(Exhs. P-15 - P-32) Each Activity Statement set forthlnvolce dates, 

addressee, billing address, current charges, late fees, prior 

balances and payment credits. (N.T. 11:21-12;3) The recordsthat 

PECO produced contained the same information as the Bills that . 

had been sent monthly to. First Montgomery, either directly or 

through Its agerit, Conserve. The Activity Statements are created 

by PECO routinely and concurrently with their Bflls. · The Biiis are 

created for the customer and the Activity Statements are created 

for Internal purposes. (N.T. 11:15-20, 23:4-16) The records that 

PECO produced are maintained in the regular-course of business 

to record regular, buslness related activities. (N .T .. 12:4~11, 21 :5- 

12) The records PECO produced constitute business records and 

Defendants were not prejudiced In anyway by the absence of the 

· original billing records. ' 

Un/ust enrichment: 

Defendants maintain that PECO did not establlsh a claim for 

unjust .. enrichment. Unjust enrichment requires proof of three 

elements: · 

(i) [B]enefits conferred on defendant · by· plaintiff[;] (ii) 

appreciation of such· benefits by ,._.defendant{;] and (iii) 

acceptance and retention of such beneffts under such 

circumstances that It would be lneqult~ble for defendant to 

retain the benefit without payment of value. 
1165(a) 

9 

BY THE COURT: -········ ,_.., 

Edwa,~ 

Dated: September ( , 2015 

• 1 For all of the reasons stated, we entered our Order. 

Shafer Elec. & Constr. v. Mantia, 67 A.3d a.12 n. 5 

(Pa.Super.,2013)(citatlon omitted). PECO delivered utilities to 

Defendants' residential rental properties. Defendants are required 

to provide· their tenants with habitable units, which Include electrical 

power and heat. (N.T. 95:9-16) Defendant~ were able to maintain 

tenants In their properties and collect rent by accepting the benefit 

of the utllltles delivered by PECO. Defendants, or their agent, 

collected payments from tenants for the utilities, but failed to pay 

PECO's bill. PECO established Its claim for unjust enrichment. 

Defendants complain that that under unjust enrichment they can 

only be liable for electric charges and not late payment charges. 

However, the Tariff controls the charges for utilities and as such the . 

late payment charges are mandated and become. part of the debt. 

PECO does not have discretion to charge a customer other than as 

provided by the Tariff .