PHILADELPHIA – A Philadelphia federal court has rejected the case of a man who said PECO warning him about a shut-off in electric service warranted $100 million in damages.

On Sept. 13, U.S. District Court for the Eastern District of Pennsylvania Judge Joseph F. Leeson Jr. dismissed the case of plaintiff Monserrate Zapata, filed against the Philadelphia Electric Company (PECO)

Zapata filed suit in August, after he said he received two “shut-off notices” from PECO, one on Oct. 4, 2016 and the other on July 11, 2017. According to PECO, the reason for the notices was because Zapata did not permit it access to inspect his electric meter, but Zapata says he never did that and the notices were unprompted.

Zapata further maintained the meter was not in proper working order, the company billed him excessively and the price of those monthly bills could result in him losing his home. After unsuccessfully filing for a temporary injunction in July to stop PECO from shutting off his service, Zapata then filed a lawsuit in which he claimed he was seriously ill, suffered from hearing and vision issues and would be aggrieved if his service were discontinued.

“Plaintiff responded by filing a civil complaint against PECO pursuant to 42 U.S.C. Section 1983, which was docketed as the instant civil action. He alleges that PECO’s issuance of the shut off notices denied him due process and equal protection in violation of the United States Constitution. He seeks an injunction against PECO and $100 million dollars in damages. It is not clear whether PECO ultimately shut off plaintiff’s electricity,” Leeson stated.

Leeson pointed to precedent in the Supreme Court of Pennsylvania which explained a privately owned and operated utility corporation was not a state actor in connection with its decision to shut off an individual’s electricity – a necessary tenet by which for Zapata to prove his case.

“More recently, the Honorable Nitza I. Quiñones Alejandro held that, although PECO could be a state actor under certain circumstances, it was not a state actor when it terminated a customer’s electricity because the customer would not allow installation of a new meter. In light of those decisions, there is no basis for finding state action in this case,” Leeson said.

Leeson also said it was worth noting that even if PECO were a state actor, Zapata did not state a basis for a plausible constitutional violation.

“PECO clearly gave plaintiff notice that it intended to shut off his electricity, and the notices provided an explanation for how plaintiff could avoid the shut off. Furthermore, Pennsylvania law sets out procedures for addressing the shut off of one’s electricity, handled by the Public Utility Commission and Bureau of Consumer Services. As it appears that plaintiff proceeded directly to federal court rather than contacting PECO or invoking state procedures, it is difficult to conclude that a due process violation has occurred here, even if plaintiff’s electricity was in fact shut off or if PECO issued the notice in error,” Leeson stated.

Leeson added there was no other plausible constitutional claim contained in Zapata’s complaint, and that the plaintiff failed to state an equal protection claim as well, since he did not properly allege he was treated differently than similarly-situated individuals.

U.S. District Court for the Eastern District of Pennsylvania case 2:17-cv-03699

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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