BEFORE THE

PENNSYLVANIA PUBLIC UTILITY COMMISSION

Scott Luellen :

:

v. : C-2016-2539599

:

Maroadi Transfer & Storage, Inc. :

ORDER DENYING PRELIMINARY OBJECTIONS

This Order denies the Respondent’s Preliminary Objections and directs the scheduling of an evidentiary hearing because the Complainant has raised allegations in his complaint that, if ultimately proven true, may constitute violations of the public utility code by the Respondent, thereby rendering preliminary dismissal of the complaint inappropriate.

HISTORY OF THE PROCEEDING

On May 3, 2016, Scott Luellen (Mr. Luellen or Complainant) filed an Amended Formal Complaint (complaint) against Maroadi Transfer & Storage, Inc. (Maroadi, Respondent, or company) with the Pennsylvania Public Utility Commission (Commission).[1]

In his complaint, the Complainant alleges that in or about November 2014, he and his domestic partner, Katherine Drago (Ms. Drago), hired the Respondent to pack and transfer their household goods from Pittsburgh, Pennsylvania. The Complainant alleges that on December 13, 2014, he was standing on a six foot tall step ladder and holding a flashlight for an agent of the Respondent at the rear entrance of a moving truck at 7105 Schoyer Avenue in Pittsburgh, Pennsylvania. The Complainant alleges that the rear driver’s side door of the moving truck swung closed and struck the Complainant, and that as a result the Complainant was thrown over the six foot step ladder and sustained severe personal injuries. The Complainant avers that this incident was due to negligence on the part of the Respondent’s agents. He alleges that his injuries resulted in pain and suffering and caused him to become partially disabled, which has rendered him unable to fully perform daily work and functions, thereby negatively affecting his ability to work and interfering with his ability to lead a normal life. The Complainant also alleges that he has expended a large amount of money for medical care, and will likely require further medical treatment as a result of this incident. The Complainant alleges that he and Ms. Drago filed a liability claim with Maroadi, but that the company has denied knowledge of the Complainant’s complaint and has not investigated or paid the Complainant’s liability claim. Attached to the complaint are copies of various emails and other correspondence.

By way of relief, the Complainant requests that the Commission (1) conduct a punitive comprehensive audit of the Respondent, (2) suspend the Respondent’s certificate of operating authority, (3) compel the Respondent to produce any and all insurance records, policies, and binders, including any and all communications regarding the complaint from December 2014 through the present, (4) sanction the Respondent and its counsel, and (5) grant any other relief that the Commission deems fair and just.

On May 24, 2016, Maroadi, by and through its counsel John A. Pillar, Esquire, filed its Answer, New Matter, and Preliminary Objections properly accompanied by a Notice to Plead. In its Answer, the Respondent admits that Ms. Drago contacted the Respondent as the booking agent to arrange for transportation of household good for Ms. Drago from her residence in Swissvale, Pennsylvania, to Belmont, Massachusetts. Maroadi denied most of the allegations set forth in the complaint. Of note, Maroadi denies that it provided labor or equipment to load or transport the shipment. Maroadi also denies that the Complainant, Mr. Luellen, was a party to the booking arrangement between Ms. Drago and the Respondent. Maroadi further denies that it or its employees were involved with the incident that allegedly resulted in the Complainant’s injury as described in the complaint. As such, the Respondent claims no knowledge as to the truth of the averments pertaining to the incident and therefore denies same.

In New Matter, Maroadi alleges (1) that since the move occurred between Pittsburgh, Pennsylvania and Belmont, Massachusetts, it is an interstate shipment subject to the jurisdiction of the Federal Motor Carrier Safety Administration and not the Commission, (2) that the Complainant was not a party to the transportation contract between Ms. Drago and the Respondent, and (3) that the complaint involves alleged injuries and a claim for damages, and that a personal injury claim is not within the Commission’s jurisdiction

In its Preliminary Objections, Maroadi asserts that (1) the Complainant was not the party to any transportation contract and, therefore, lacks standing to complain to the Commission on the basis of a contract between Ms. Drago and the moving company, (2) the complaint shows that the Respondent was only a booking agent and was not involved in the loading or transporting of the shipment, (3) the Complainant filed no liability claim with the Respondent, and (4) that the only allegation by the Complainant that could constitute a possible claim, if one had been filed, alleges a personal injury to the Complainant, for which recovery would be beyond the Commission’s jurisdiction.

On June 10, 2016, the Complainant filed a response to the Respondent’s Answer and New Matter. The Complainant alleges that the Respondent’s Answer was filed untimely and variously disputes the factual averments set forth in the Respondent’s Answer and New Matter.[2]

On June 1, 2016, the matter was assigned to me by Motion Judge Assignment Notice.

The matter is now ripe for decision. For the reasons stated below, I will deny the Preliminary Objections and direct that a hearing be scheduled.

DISCUSSION

As noted, the Complainant requests that the Commission (1) conduct a punitive comprehensive audit of the Respondent, (2) suspend the Respondent’s certificate of operating authority, (3) compel the Respondent to produce any and all insurance records, policies, and binders, including any and all communications regarding the complaint from December 2014 through the present, (4) sanction the Respondent and its counsel, and (5) grant any other relief that the Commission deems fair and just.

Commission preliminary objection practice is similar to Pennsylvania civil practice. Equitable Small Transportation Interveners v. Equitable Gas Company, 1994 Pa. PUC LEXIS 69, PUC Docket No. C-000935435 (July 18, 1994). When considering the preliminary objection, the Commission must determine “whether the law says with certainty, based on well-pleaded factual averments . . . that no recovery or relief is possible. P. J. S. v. Pa. State Ethics Commission, 669 A.2d 1105 (Pa.Cmwlth. 1996). Any doubt must be resolved in favor of the non-moving party by refusing to sustain the preliminary objections. Boyd v. Ward, 802 A.2d 705 (Pa.Cmwlth. 2002).” Dept. of Auditor General, et al. v. State Employees’ Retirement System, et al., 836 A.2d 1053, 1064 (Pa.Cmwlth. 2003).

The rules regarding preliminary objections are as follows:

§ 5.101. Preliminary objections.

(a) Grounds. Preliminary objections are available to parties and may be filed in response to a pleading except motions and prior preliminary objections. Preliminary objections must be accompanied by a notice to plead, must state specifically the legal and factual grounds relied upon and be limited to the following:

(1) Lack of Commission jurisdiction or improper service of the pleading initiating the proceeding.

(2) Failure of a pleading to conform to this chapter or the inclusion of scandalous or impertinent matter.

(3) Insufficient specificity of a pleading.

(4) Legal insufficiency of a pleading.

(5) Lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action.

(6) Pendency of a prior proceeding or agreement for alternative

dispute resolution.

(7) Standing of a party to participate in the proceeding.

* * *

52 Pa.Code § 5.101(a).

In reviewing preliminary objections, only the well pled material facts of the non-moving party may be presumed to be true in order to determine whether recovery is possible. In order for Complainant to prevail ultimately, there must be a statute, regulation or order which the Commission is authorized to enforce. The Complaint must set forth anything done or omitted to be done by the utility company in violation of any law which the Commission has jurisdiction to administer. 66 Pa.C.S. § 701; 52 Pa.Code § 5.21(a).

The Respondent’s Preliminary Objections seek dismissal of the complaint on the grounds that the Commission lacks jurisdiction to hear the complaint, and because the Complainant has no standing to seek relief from the Commission.

In deciding the preliminary objections, the Commission must determine whether, based on well-pleaded factual averments of the complainant, recovery or relief is possible. Dep't of Auditor General, et al v. SERS, et al., 836 A.2d 1053, 1064 (Pa.Cmwlth. 2003); P.J.S. v. Pa. State Ethics Comm'n, 669 A.2d 1105 (Pa.Cmwlth. 1996). Any doubt must be resolved in favor of the non-moving party by refusing to sustain the preliminary objections. Boyd v. Ward, 802 A.2d 705 (Pa.Cmwlth. 2002). All of the non-moving party's averments in the complaint must be viewed as true for purposes of deciding the preliminary objections, and only those facts specifically admittedmay be considered against the non-moving party. Ridge v. State Employees' Retirement Bd., 690 A.2d 1312 (Pa.Cmwlth. 1997).

Interstate Transactions

The Respondent argues in its New Matter and Preliminary Objections that the move at issue involves an interstate transaction and is therefore not within the jurisdiction of the Commission. In his Amended Complaint, the Complainant does not state on the complaint form the termination point of the move. Further, in his response to the Answer and New Matter, the Complainant does not admit that an interstate transaction took place, but asserts that evidence will be produced at hearing to demonstrate that the actions of the Respondent in this matter are within the Commission’s jurisdiction.

The Commission does not have jurisdiction over transactions involving interstate commerce.

The statue at 66 Pa. C.S. §104 provides as follows:

The provisions of this part, except when specifically so provided, shall not apply, or be construed to apply, to commerce with foreign nations, or among the several states, except insofar as the same may be permitted under the provisions of the Constitution of the United States and the acts of Congress. (Emphasis added)

I note that there is an email dated February 2, 2016, attached to the complaint and marked as Exhibit G (the email). The email appears to be correspondence from the Complainant, addressed to the Respondent, and copying Ms. Drago. In the first paragraph of the body of the email, the Complainant indicates that the Respondent moved goods, “… from 7105 Schoyer Avenue in Pittsburgh to Boston on December 14, 2014.” Further, the subject line of the email reads, “Fwd: Hello from Boston!”

Although it appears from this e-mail that move may very well have been an interstate move, Complainant argues in his response to Maroadi’s New Matter that Respondent’s work was discrete, separate and unrelated to interstate transit and that he will produce evidence at trial to prove same. Out of an abundance of caution, and giving the non-moving party the benefit of any doubts and accepting as true all of Complainant’s factual averments and reasonable inferences deducible therefrom, I will give Complainant an opportunity to address this issue at a hearing. The Complainant is cautioned that if, in fact, it is shown at the evidentiary hearing that the move originated in the Commonwealth of Pennsylvania and terminated in another state (including the state of Massachusetts), such determination will be fatal to Complainant’s complaint, due to lack of Commission jurisdiction over the transaction, since such a transaction constitutes commerce among the states, and the complaint will be dismissed in its entirety.

Standing

In its New Matter and Preliminary Objections, the Respondent alleges that the Complainant was not a party to the transportation contract at issue, nor did the Complainant give any consideration for any service provided by the Respondent as a booking agent and packer of the household goods transported. The Respondent avers that all charges were paid by Ms. Drago, and that the documentation attached to the complaint indicates that the actual shipper or contracting party was Ms. Drago. Therefore, the Respondent asserts that the Complainant lacks standing to seek relief from the Commission and the complaint should be dismissed.

In paragraph 6 of the complaint form, the Complainant states that “Mr. Luellen and his domestic partner, Katherine Drago, hired MAROADI MOVING & STORAGE, to pack and transfer their household goods from Pittsburgh, Pennsylvania.” Further, in his response to the Answer and New Matter, the Complainant disputes the Respondent’s challenge to his standing to pursue the complaint before the Commission, and cites various factual allegations to support his position.

52 Pa.Code § 5.101(a)(7) permits the filing of preliminary objections to contest the standing of a party to participate in a proceeding. 52 Pa.Code § 5.103(d)(3) further states:

If a motion involves a question of jurisdiction, the establishment of a prima facie case or standing, the presiding officer may render a final determination with regard to a motion prior to the termination of hearings by issuing an initial or recommended decision. 52 Pa.Code § 5.103(d)(3).

Standing to participate in proceedings before an administrative agency is primarily within the discretion of the agency. Pa. National Gas Association v. T.W. Phillips Gas and Oil Co., 75 Pa. P.U.C. 598, 603 (1991). Generally, the Commission has held that a person or entity has standing when the person or entity has a direct, immediate and substantial interest in the subject matter of a proceeding. Joint Application of Pennsylvania-American Water Co. and Evansburg Water Co. for Approval of the transfer, by sale, of the water works property and rights of Evansburg Water Co. to Pennsylvania-American Water Co., A-212285F0046/47 and A-210870F01 (July 9, 1998); William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975); Landlord Service Bureau, Inc. v. Equitable Gas Co., 79 Pa. P.U.C. 342 (1993); Re Equitable Gas Co., 76 Pa. P.U.C. 23 (1992); Manufacturers' Association of Erie v. City of Erie - Bureau of Water, 50 Pa. P.U.C. 43 (1976); Waddington v. Pennsylvania Public Utility Commission, 670 A.2d 199 (Pa. Cmwlth. 1995), alloc. denied, 678 A.2d 368 (Pa. 1996). Requiring a person or entity to have a direct, immediate and substantial interest in the subject matter of a proceeding helps avoid frivolous, harassing lawsuits whose costs are ultimately borne, at least in part, by utility ratepayers. See Pennsylvania Public Utility Commission v. National Fuel Gas Distribution Corp., 73 Pa. P.U.C. 552 (1990).