PGW v. Pa. PUC, Appeal of: SBG Mgt. Srvcs. ( 2021 )

[J-101-2020][M.O. - Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
PHILADELPHIA GAS WORKS : No. 14 EAP 2020
:
: Appeal from the Commonwealth Court
v. : dated 12/9/19 at No. 1291 C.D. 2018,
: reversing the final orders of the Pa.
: P.U.C. dated December 8, 2016, May
PENNSYLVANIA PUBLIC UTILITY : 18, 2018 and August 23, 2018
COMMISSION :
: ARGUED: December 2, 2020
APPEAL OF: SBG MANAGEMENT :
SERVICES, COLONIAL GARDEN :
REALTY CO., L.P. AND SIMON GARDEN :
REALTY CO., L.P. :
DISSENTING OPINION
JUSTICE SAYLOR DECIDED: April 29, 2021
I respectfully dissent, since I would credit the rationale of the Commonwealth
Court in full.
It merits emphasis that Section 7106(b) of the Municipal Claims and Tax Lien
Law repeatedly clarifies that the contemplated effect of the lien as a “judgment” is
“against . . . property.” See 53 P.S. §7106(b). The statute, therefore, doesn’t serve to
enhance or diminish utility customers’ personal liability for the amounts charged for
services rendered or interest obligations arising from their failure to make timely
payments. Accord Majority Opinion, slip op. at 19 (explaining that “utility bills are
personal debts upon the customer who receives service”); Phila. Gas Works v. PUC,
222 A.3d 1218 (Pa. Cmwlth. 2019) (“Although the underlying debt is personal to the
customer, the lien is in rem against the real property at which service was provided.”).1
For this reason and otherwise, the security-related focus of the statute -- centered
squarely on encumbering the serviced property -- is unmistakable. Simply put, nothing
suggests that perfection of a lien relieves the customer of personal liability, in whole or
in part.
In holding that the statute serves to thwart the ongoing accrual of interest on
delinquent customer accounts at the rate called for by the prevailing tariff, the majority
appears to conceptualize the perfection of liens against real property and the pursuit of
in personam judgments as mutually-exclusive, alternative options. See Majority
Opinion, slip op. at 19 (indicating that a municipal utility may elect between such
avenues). However, the Legislature has specified that municipal utilities may pursue
personal judgments, via actions in assumpsit, “[i]n addition to the remedies provided by
law for the filing of liens.” 53 P.S. §7251 (emphasis added). Accordingly, it seems clear
to me such utilities are authorized to pursue the various avenues -- including perfection
of liens and commencement of actions to establish personal liability -- simultaneously or
serially. See 53 P.S. §7251.2
1 Of course, monies received upon execution on a lien by a municipal utility would
properly be credited against the customer’s personal liability.
2 I acknowledge that there could be circumstances in which the Legislature might utilize
the “in addition to” phraseology loosely by prescribing for mutually-exclusive, alternative
remedies instead of additional ones. But, in the present circumstances -- particularly in
light of the object of the governing statutes, their remedial purposes, and the security-
related purpose of conferring the effect of a judgment relative to serviced property prior
to any adjudication -- I find no reason to believe that the General Assembly might have
intended to do so here.
Indeed, the manner of coupling in rem security with personal liability adopted by the
majority is fraught with difficulties. For example, in a scenario in which proceeds from
execution upon the serviced property turn out to be insufficient to satisfy the customer’s
(continued…)
[J-101-2020][M.O. – Donohue, J.] - 2
As the Commonwealth Court ably explained, the statutory regime is designed to
enable potent incentives for customers to pay municipal utility bills and mechanisms for
providing the utilities with security for such payment. In the widest frame, the object is
the protection of the public at large. Accord 66 Pa.C.S. §1402(1) (“Increasing amounts
of unpaid bills now threatens paying customers with higher rates due to other
customers’ delinquencies.”). The majority’s approach, on the other hand, has the effect
of diluting these protections by presenting municipal utilities with an unpalatable choice
of foregoing either the accrual of lawful, tariff-based interest or the security afforded
through lien perfection.
In my view, however, the General Assembly has provided various layers of
statutory protections that are not mutually exclusive, but instead, are supplementary.
(…continued)
liability for services rendered, it appears that municipal utilities will now lack the means
to adjudicate and collect the deficiency. Again, however, I find that the governing
statutory scheme provides to the contrary.
[J-101-2020][M.O. – Donohue, J.] - 3