Schreiber v. Pennsylvania Public Utility Commission

Opinion by Judge Doyle, Before this Court is an appeal by Marvin Schreiber (Petitioner) from a decision and order of the Pennsylvania Public Utility Commission (PUC) which upheld the imposition of multiple-dwelling residential rates to Petitioner’s property by Duquesne Light Company (Duquesne). We affirm. The facts in this matter are not in dispute. Petitioner owns and resides in a single family residence located in Fox Chapel Borough. On the same prop [7] erty as Petitioner’s house is a small, separate, cottage-like structure which, at all times relevant, was occupied rent free by Petitioner’s caretaker. The cottage consists of a living room/dining area, kitchen, bedroom and a bath, and is classified as an accessory use under the Fox Chapel zoning ordinance.1 Electric service to both Petitioner’s house and the cottage was supplied through a single meter located in the main residence. Because the two distinct residential dwelling units were served through a single meter, Petitioner was charged for his use of electricity at a multiple-dwelling residential rate under the applicable Duquesne tariff.2 In April, 1976, Petitioner began to recalculate his electric bills applying Duquesne’s single-family dwelling rate to his electricity consumption and paid only this lesser amount. Petitioner also filed a complaint before the PUC. Following a hearing, the PUC upheld Duquesne’s practice and the appeal to this Court followed. This Court’s review of PUC orders is limited to a determination of whether constitutional rights have been violated, an error of law has been committed or whether findings of fact are supported by substantial evidence. West Penn Power Co. v. Pennsylvania Public Utility Commission, 57 Pa. Commonwealth Ct. 148, 422 A.2d 230 (1980) aff’d on reargument 57 Pa. Commonwealth Ct. 148, 426 A.2d 1312 (1980). Before this Court, Petitioner urges that the PUC erred as a matter of law in considering the cottage a separate dwell [8] ing unit when it was classified as accessory, to the principal residence under the Fox Chapel zoning ordinance. We disagree. Absent express language to the contrary in the Municipalities Planning Code,3 the provisions of a borough zoning ordinance are not controlling on a public utility. See Commonwealth v. Delaware and Hudson Railway Co., 19 Pa. Commonwealth Ct. 59, 339 A.2d 155 (1975). Land use classification under a local zoning ordinance does not control the classification of electricity use under a public utility tariff. Petitioner then urges that the PU.C erred in considering the cottage a separate dwelling unit because domestic servants to an employer must be considered part of the integrated single family unit. We again must disagree. The focus of the inquiry is not on the number of family units served through a single meter but on the number of separate and distinct dwelling units to which power is supplied. In the case at bar the record is clear. The cottage was located some 300-500 feet from the-main house. It was equipped with a living room, a bedroom, a bath and a kitchen in which the caretaker prepared meals. Separate kitchen facilities have been held to be indicative of a separate dwelling unit. See Sheets v. Pennsylvania Public Utility Commission, 171 Pa. Superior Ct. 151, 90 A.2d 633 (1952). Although the caretaker no doubt served an important role in Petitioner’s household, he resided in a dwelling that was separate and apart from that of Petitioner, i.e. the cottage. There was no error in the PITC’s determination that the cottage constituted an additional dwelling unit serviced through the single meter with the main residence. [9] Order Now, October 21, 1983, tbe order of the Pennsylvania Public Utility Commission in the above referenced matter, adopted October 16, 1980 and entered December 2,1980 is hereby affirmed. Footnotes [1] The Fox Chapel zoning ordinance permits only single-family residential uses in the Borough. [2] In July, 1979, Duquesne discontinued the tariff structure which gave rise to the instant action in favor of a uniform charge per kilowatt-hour. Accordingly, this appeal concerns only the period from April, 1976 through July, 1979. [3] Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101 through 11202.