# DEWALT v. THE CITY OF ERIE

> District Court, W.D. Pennsylvania · September 9, 2025

URL: https://www.frixlaw.com/law-library/cases/11135302

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** September 9, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11135302

## How later opinions describe it (automated extraction)

- discussing the applicable color of law tests

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN DEWALT, )
Plaintiff, )
Vs. C.A. No, 24-2 Erie
THE CITY OF ERIE, ANDREW District Judge Susan Paradise Baxter
ZIMMERMAN, and PENNSYLVANIA _)
ELECTRIC CoO., )
Defendants. )

MEMORANDUM OPINION

I INTRODUCTION
Pending before. the Court is Defendant Pennsylvania Electric Company’s ("Penelec")
Motion to Dismiss Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(%). [ECF No. 22]. Plaintiff filed a brief in opposition to Penelec’s motion [ECF No.
28], and Penelec submitted a reply brief [ECF No. 35]. Upon review of the above and the
analysis set forth below, the Court grants Penelec’s Motion to Dismiss. _

A. Relevant Factual History
As a preliminary matter, “when a. state agency acting in a judicial capacity ... resolves
disputed issues of fact properly before it which the parties have had an adequate opportunity to
litigate,’ federal, courts must give the agency's factfinding the same preclusive effect to which it
would be entitled in the State's courts.” Univ. of Tennessee v. Elliott, 478 US. 788, 799 (1986).
A hearing officer’s factual findings are considered prima facie correct. See e.g., D.S. v. Bayonne
Bd. of Edue., 602 F.3d 593, 564 (3d Cir. 2010); Edmundson v. Borough of Kennett Square, 4
F.3d 186, 1 93 3d Cir. 1993)(n determining whether to give preclusive effect to agency fact-

finding, courts must weigh the rights at stake, the power of state procedures, and their adequacy
in "highly specialized areas"), Therefore, this Court includes a detailed factual background which
is consistent with the findings of the Pennsylvania Public Utilities Commission (“PaPUC?),
unless otherwise detailed.
Plaintiff J ohn Dewalt owns a residential property located at 546 Lincoln Avenue / 1 704
W. 6th Street, Brie, PA 16505 ("the Property"). (ECF No. 18 at Exhibit C). The Property has a
unique historical use: it was originally constructed as a two-family dwelling and, for much of its
existence, operated as such, with separate utilities, living quarters, and entrances for each unit.
(ECF No. 23-4 at 67-70). Under prior zoning ordinances, two-family dwellings were permitted in
the area, and the Property itself was once zoned accordingly. (ECF No. 35-1 at 10). However,
sometime before 2013, the two-family use was abandoned and the City of Erie issued a zoning
certificate designating the Property as a single-family dwelling. (ECF No. 23-4 at p. 67). Despite
this reclassification, the Property retained its dual-utility infrastructure, including two natural gas
meters (serviced by National Fuel), two water meters (serviced by Erie Waterworks), and
segregated electrical wiring with separate service panels for each unit. (Jd. at p. 75). The second
electrical meter had been removed by Plaintiffs father—the prior owner—when the Property
was occupied by only one household. (/d. at p. 67).
In 2013, Plaintiff’s father sought to revert the Property to its original two-family use and
applied for a zoning variance, which was denied by the Erie Zoning Hearing Board. (/d.).
Plaintiff renewed his father’s efforts in 2023, filing another application for a use variance to
reclassify the Property as a two-family dwelling. (/d.) The Zoning Hearing Board again denied
the request, citing that the proposed use was not permitted in the R-1 residential zoning district.
(Id.)

Also in 2023, Plaintiff determined that the Property’s aging electrical system required
upgrades due to safety concerns, including a frayed entrance cable, degraded insulation, and
outdated four-circuit fuse boxes. (ECF No. 23-4 at 17). He obtained an electrical permit from the
City of Erie, outlining his plan to reinstall the second meter socket and bring the entire system up
to current code standards. (/d. at 85). The permit application was submitted with guidance from
Sam Santana, the City’s designated electrical inspector, and approved. (ECF No. 35-1 at p. 6,
410). Plaintiff then proceeded with the upgrades, consulting Santana throughout the process to

ensure compliance with the National Electric Code. (/d.). Upon completion of the permitted
work, Plaintiff requested a final inspection from the City of Erie, which was required to
authorize Penelec to place and energize the second meter. However, the City refused to inspect
the final work product, citing zoning non-compliance.
Plaintiff then retained EKE Services, a West Virginia-based licensed electrical inspector,
who confirmed the work met National Electric Code standards. (ECF No. 35-1 at § 24).
However, the City of Erie—having adopted the Uniform Construction Code (UCC)—only
recognizes inspections performed by its designated inspector (Santana) or Building Inspection
Underwriters of PA (BIU). (dd. at §§ 3, 5). Further, Rule 6 of Penelec’s tariff provides: “Penelec
will not connect or furnish electric service ... unless a written certificate of approval, satisfactory
to the Company, has been received from a competent inspection agency authorized to perform
this service in the specific locality in which service is to be provided.” (ECF No. 23-5 at p. 3).
Thus, EKE’s inspection was not valid for the purpose of authorizing Penelec to begin its work.

,

B. _—_—- Relevant Procedural History

_ Plaintiff's Amended Complaint asserts four counts against Penelec: Count I - violation of
substantive due process; Count II - violation of procedural due process; Count III - violation of
equal protection; and Count IV ~ promissory estoppel under Pennsylvania state law.
Penelec raises several arguments in support of its motion to dismiss: (1) this Court lacks
subject matter jurisdiction because the PaPUC retains exclusive jurisdiction over disputes
involving utilities; (2) the doctrines of claim and issue preclusion bar the Plaintiff's claims
because the issues and claims in question were already litigated and resolved by the PaPUC; (3)
the Plaintiff has failed to adequately allege or demonstrate that Penelec acted "under color of
state law," a necessary element for any claim brought under 42 U.S.C. § 1983; and (4) even if the
Court were to reach the merits of the Plaintiff's § 1983 claims, those claims fail to state a cause
of action upon which relief may be granted. Each of these arguments will be addressed in turn.
I. | DISCUSSION

A. Jurisdiction Under Fed. R. Civ. P. 12(b)(1)
A Rule 12(b)(1) motion challenges the federal court's “very power to hear the case.” □

Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Under Rule
12(b)(1), the plaintiff is the party invoking a federal court's jurisdiction and therefore bears the
burden of showing its claims are properly before the court. Id. Under Rule 12(6)(1), a challenge
can be either a facial ot a factual challenge. Petruska v. Gannon Univ., 462 F.3d 294, 302, n3
(3d Cir. 2006). Challenge to subject matter jurisdiction is “facial” when, as here, a motion to
dismiss is filed prior to an answer and asserts that the complaint is jurisdictionally deficient on its
face. When considering such a challenge a court must only consider the allegations of the
complaint and documents referenced therein and attached thereto, in the light most favorable to
the plaintiff. See PBGC v. White, 998 F.2d 1192, 1196 (3d Cir.1993).

Penelec contends in its reply brief that the PaPUC enjoys exclusive jurisdiction over this
dispute, thereby precluding this Court from adjudicating Plaintiffs claims. ECF No. 35 at 4.
While the Court agrees that the PaPUC possesses original jurisdiction over utility service
disputes—and that primary jurisdiction principles often require initial deference to the agency—.
Penelec has not identified, nor can the Court locate, any authority supporting the proposition that
the PaPUC’s jurisdiction is exclusive in the sense of permanently ousting judicial review.
Pennsylvania law unequivocally establishes the PaPUC as the proper forum for initial
adjudication of disputes involving utility services, including matters of service denial, rates, and
infrastructure. Einhorn y. Philadelphia Elec. Co., 410 Pa. 630, 634 (1963) (“a long list of
decisions of this Court make it clear that all matters between public utilities and customers
(including rates, installation of utility facilities and all compensation for service rendered to
customers are initially vested in the Commission.”) The doctrine of primary jurisdiction further
reinforces that courts should defer first to administrative agencies when the dispute involves
technical or policy questions within the agency’s specialized competence. MCI
Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1106 (3d Cir. 1995).
Critically, however, primary jurisdiction is not a jurisdictional limitation—it is a
prudential doctrine governing the order of decision-making, not the availability of judicial
review. U.S. v. Philadelphia National Bank, 374 U.S. 321 (1963) (primary jurisdiction
postpones, rather than extinguishes, judicial authority); U.S. v. Henri, 828 F.2d 526, 527 (9th
Cir. 1987) (“[T]he doctrine of primary jurisdiction ... does not speak of the jurisdictional power
of the federal courts.”). Thus, the law does not suggest that the PaPUC’s original jurisdiction is

so exclusive as to forever bar courts from reviewing final agency decisions or related claims. To
the contrary, state and federal courts routinely exercise jurisdiction over matters that originate

before administrative bodies once the administrative process concludes. See e.g, Laveson v.
Trans World Airlines, 471 F.2d 76, 79 (3d Cir. 1972)(“A court-made doctrine, primary
jurisdiction holds that in some cases, courts should not render a decision—exercise their
jurisdiction—until certain issues have been passed upon by the appropriate administrative
agency”’.)
Here, the PaPUC has already fulfilled its role as the initial adjudicator, rendering a final
decision after hearings, witness testimony, and evidentiary submissions. [ECF No. 23-4].
Because the administrative process is complete, the Court is not divested of jurisdiction.
Penelec’s argument conflates original jurisdiction with exclusive jurisdiction in a manner
unsupported by statute or precedent. The Court therefore retains authority to evaluate Plaintiff's
claims under the appropriate standard of review.
B. Fed. R. Ciy. P. 12(b)(6): Standard of Review
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In
deciding a motion to dismiss, the court accepts as true all well pled factual allegations in the
complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v.
Higgins, 281 F.3d 383, 388 Gd Cir. 2002).
survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
y. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. A court need not accept as true unsupported conclusions and unwarranted inferences. Doug

Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000). Similarly,
“{t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Ashcroft, 556 U.S. at 678.
In deciding a motion to dismiss, courts generally consider only the allegations contained
in the complaint, any exhibits attached to the complaint, and matters of public record. Pryor v.
Nat'l Collegiate Athletic Assoc., 288 F.3d 548, 560 (3d Cir.2002). Courts also may consider a
document that a defendant attaches as an exhibit to a motion to dismiss, if the authenticity of the
document is undisputed and the plaintiff's claims are based on the document. Pension Ben. Guar.
Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Further, while a court
must accept all factual allegations in Plaintiff's complaint as true, courts are not compelled to
accept “unsupported conclusions and unwarranted inferences.” See Schuylkill Energy Res., Inc.

v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d Cir.1997), or Kg legal conclusion couched as a
factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986).
1. Collateral Estoppe! and Res Judicata
Penelec argues that the issues and claims in this case are barred by the doctrines of
collateral estoppel and/or res judicata because they were already litigated and resolved by the
PaPUC. Federal courts have long recognized that the doctrines of collateral estoppel and res
judicata may apply to final administrative determinations where those determinations result from
judicial-style proceedings. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 107
(1991); United States v. Utah Constr. & Mining Co., 384 US. 394, 422 (1966). An agency acts
in a judicial capacity when it provides the parties with (i) representation by counsel; (ii) pretrial
discovery; (iii) the opportunity to present memoranda of law; (iv) the opportunity to examine and
cross-examine witnesses; (v) the opportunity to introduce exhibits; (vi) the chance to object to

evidence; and (vii) final findings of fact and conclusions of law. Exxon Co. U.S.A. v. Amerada
Hess Pipeline Corp., 83 F.E.R.C. □ 63,011 at p. 65,095 (1998) (reversed on other grounds).
Here, all of the elements of a judicial style proceeding are present. Penelec and Plaintiff

were represented by counsel (ECF No. 23-4 at 2), provided discovery and exhibits (Id. at 4-5),
presented memoranda of law (ECF No. 23-3), examined and cross-examined witnesses (ECF No.
23-4 at 3), objected to evidence (See e.g., Id. at 118), and the agency provided a final findings of
fact and conclusions of law (ECF No. 35-1). Thus, the doctrines of collateral estoppel (issue
preclusion) and res judicata (claim preclusion) may apply and are analyzed below.
a. Collateral Estoppel (Issue Preclusion)
The Third Circuit applies a four-part test for collateral estoppel: (1) the issue decided in
the prior adjudication must be identical to the one presented later; (2) there must have been a
final judgment on the merits; (3) the party against whom estoppel is asserted must have been a

party or in privity with one in the prior proceeding; and (4) that party must have had a full and
fair opportunity to litigate the issue previously. Greenleaf v. Garlock, Inc., 174 F.3d 352, 357-58
(3d Cir. 1999).

Here, Penelec’s collateral estoppel argument fails at the first prong because the
constitutional issues before this Court were never litigated or decided by the PaPUC. The
PaPUC's adjudication addressed only whether Penelec properly refused to install a second meter
under its Tariff Rule 6 based on compliance with local construction code inspection
requirements. The ALJ concluded that Penelec acted properly because the inspection by EKE
was not authorized under Erie's UCC enforcement scheme—a determination grounded entirely in

state utility regulations without any constitutional analysis. By contrast, Plaintiff's federal § 1983
allegations raise fundamentally different questions about whether the City of Erie or Penelec by

their application of the governing rules deprived him of a protected property interest without
adequate process or through arbitrary government action. These constitutional issues fall well
outside the PaPUC's jurisdiction. See Califano v. Sanders, 430 U.S. 99, 109 (1977)
(“Constitutional questions obviously are unsuited to resolution in administrative hearing
procedures ....”)!
b. Res Judicata (Claim Preclusion)

Pennsylvania law demands the convergence of four conditions before claim preclusion
may take hold: identity in (1) the subject matter sued upon; (2) the cause of action; (3) the parties
to the action; and (4) the legal capacity of those parties. Duquesne Slag Prods. Co. v. Lench, 490
Pa. 102, 105 (1980); Bearoff v. Bearoff Bros., 458 Pa. 494, 497 (1974). Yet the doctrine is no
blunt instrument; our courts have long rejected rigid formalism in favor of a pragmatic inquiry
into whether the underlying dispute has been fully aired. See Bream v. Pennsylvania State Univ.,
2022 WL 2816518, at *2 (3d Cir. 2022), citing McArdle v. Tronetti, 627 A.2d 1219, 1222 (Pa.
Super. Ct. 1993)); See also Gregory v. Chehi, 843 F.2d 111, 118 (3d Cir. 1988). A plaintiff
cannot evade preclusion merely by repackaging a single grievance into new legal theories—what
matters is whether the claims spring from a common transactional core.
It bears emphasis that while Plaintiff's due process claims arise from the same factual predicate—namely, Penelec’s
refusal to install and energize a second meter following the City of Erie's non-approval of EKE's inspection——this
shared factual foundation does not equate to identity of issues for collateral estoppel purposes. See e.g., McLaughlin
v. Fisher, 2002 WL 35652678, at *3 (M.D. Pa. May 20, 2002) (distinguishing § 1983 issues from previously
litigated administrative hearing issues.)
Even if this court were to conclude that collateral estoppel would otherwise operate to preclude the federal
constitutional claims, the application of collateral estoppel is not automatic. One limitation to the application that
has been “repeatedly recognized” is “that the doctrine of collateral estoppel cannot apply when the party against
whom the earlier decision is asserted did not have a ‘full and fair opportunity’ to litigate that issue in the earlier
case.” Allen v. McCurry, 449 U.S. 90, 94 (1980), citing Montana v. United States, 440 U.S. 147, 153 (1979).

First, the subject-matter identity requirement turns on the alleged wrong. Here, that
alleged wrong is unmistakable: Penelec’s refusal to install and energize a second meter. That
singular act anchors both suits, and relitigating it would demand the same witnesses and
evidence. See Helmig v. Rockwell Mfg. Co., 131 A.2d 622, 626 (1957). Indeed, Plaintiff has
already sought to depose Andrew Zimmerman in this action [ECF No. 31], after previously
cross-examining him at length in the PaPUC proceeding. (See ECF No. 23-4 at 3).
Second, the cause of action is the same. Plaintiff's grievances—nepotism, cronyism, and
the meter refusal—are unchanged, and no new material facts have been alleged. But crucially,
not all relief was available in the first forum. As the Third Circuit has held, preclusion is
inappropriate where "barriers prevented [a plaintiff] from seeking full redress initially." Beasley
v. Howard, 14 F.4th 226, 234 (3d Cir. 2021), quoting V.V.V. & Sons Edible Oils Ltd. v.
Meenakshi Overseas, 946 F.3d 542, 546 (9th Cir. 2019)). It is beyond dispute that the PaPUC, by
its nature, could not grant the monetary or injunctive relief Plaintiff now pursues.
The PaPUC’s proceedings are designed to resolve utility-service disputes with efficiency
and expertise, balancing consumer protection against the need for reliable energy delivery. They
operate on streamlined procedures—limited discovery, expedited hearings, and remedies focused

on corrective orders rather than damages. But that very efficiency comes with trade-offs: the

agency’s statutory mandate does not extend to adjudicating every legal consequence of a utility’s
conduct, nor can it award the full spectrum of judicial relief. To treat its determinations as
preclusive would force plaintiffs to choose between an expedited fix and their right to
comprehensive redress—a choice the law does not compel. Cf. Frazier v. King, 873 F.2d 820,
824 (5th Cir. 1989) (rejecting preclusion where an administrative forum lacked jurisdiction over
1983 claims).

10

Preclusion thus fails on transactional fairness grounds. Where, as here, a plaintiff had
reason" to pursue an initial action that could not deliver complete relief, the law does not
demand an impossible choice between administrative recourse and a day in court. Beasley v.
Howard, 14 F.4th 226, 235 (3d Cir. 2021) (“Assertions of claim preclusion are readily denied
when the remedies sought in the second action could not have been sought in the first action.”).
(internal citations omitted.)
B. Under Color of State Law
Before the Court is the question of whether Plaintiff has sufficiently alleged that Penelec,

a private utility company, acted "under color of state law" in refusing to install and energize a
second electrical meter at his property. For the reasons that follow, the Court concludes that
Plaintiff has failed to meet this threshold requirement for its 42 U.S.C. § 1983 claims.
To state a claim under § 1983, a plaintiff must demonstrate both a deprivation of a
federally protected right and that the deprivation was caused by conduct fairly attributable to the

state. Gomez v. Toledo, 446 U.S. 635, 640 (1980). The "color of state law" requirement serves as

a critical gatekeeping function, ensuring that § 1983 liability attaches only to those actions that
reflect the exercise of governmental power rather than purely private conduct. West v. Atkins,
487 U.S. 42, 48 (1988).
The Courts have developed several doctrinal approaches to assess whether private
conduct may be deemed state action. See e.g, Brown v. Philip Morris Inc., 250 F.3d 789, 801 Gd
Cir. 2001) (discussing the applicable color of law tests). First, the public function test requires
the court to determine whether the defendant was performing a function that is “traditionally and
Preclusion would negate the administrative agency’s role as the primary forum, given its limited remedial authority
and discourage claimants from using the streamlined administrative process altogether. See, 18 Charles Alan Wright
et al., Federal Practice and Procedure § 4412 (3d ed. 2021)

11

exclusively” the province of the state. Leshko v. Servis, 423 F.3d 337, 343 Gd Cir.2005). The
requirements of the public function test are “rigorous” and “rarely...satisfied.” Robert S. v.
Stetson School, Inc., 256 F.3d 159, 165 (3d Cir.2001).
Second, the close nexus test considers whether there exists such a substantial connection
between the state and the challenged action that the conduct may be fairly treated as that of the
state itself. Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). Third, the joint action or
symbiotic relationship test asks whether the government has “insinuated itself into a position of
interdependence with the defendant.” Brown v. Philip Morris Inc., 250 F.3d 789, 803 (3d Cir.
2001).
Regardless of what test is ultimately applied, the object of the inquiry is to determine
whether a private entity has exercised powers traditionally reserved exclusively to the
government, Jackson, 419 U.S. 345, 352, (1974), or whether “the defendant exercised power
possessed by virtue of [federal] law and made possible only because the wrongdoer is clothed in
the authority of [federal] law.” Groman v. Township of Manalapan, 47 F.3d 628, 639 n. 17 (3d
Cir.1995) (citations omitted). The Plaintiff's theory of liability hinges on the claim that Penelec
refused to install a second electric meter not due to its own policies, but because of improper
pressure from a city official. This argument is unpersuasive for several reasons, each of which is
supported by the record—including Plaintiffs own Exhibit D (ECF No. 18 at 22),
Public Function Test
A private entity may qualify as a state actor when it exercises “powers traditionally
exclusively reserved to the State.” Jackson, 419 U.S. at 449. It is not enough that the federal,
state, or local government exercised the function in the past, or still does. And it is not enough
that the function serves the public good or the public interest in some way. Rather, to qualify as a

12

traditional, exclusive public function within the meaning of our state-action precedents, the
government must have traditionally and exclusively performed the function. Manhattan Cmty.
Access Corp. v. Halleck, 587 U.S. 802, 809 (2019).
The law regarding public utilities under this test is clear. In Jackson, the Supreme Court
equated the question of whether something is a public function with the question of whether the
particular state imposed a duty to perform the relevant function. Jackson, 419 U.S. at 353. In that

case, the Court refused to hold that providing utility services is state action under the public
function test, because “while the Pennsylvania statute imposes an obligation to furnish service on
regulated utilities it imposes no such obligation on the State. The Pennsylvania courts have
rejected the contention that furnishing of utility services is either a state function or a municipal
duty.” Id. at 353; See also Mark v. Borough of Hatboro, 51 F.3d 1137, 1144 Gd Cir. 1995).
Close Nexus Test
In Jackson, the Supreme Court held that a private utility company's termination of service

was not state action unless there was a "sufficiently close nexus" between the state and the
company's conduct to deem the latter "fairly treated as that of the State itself." Jackson, 419 U.S.
at 351. The Court emphasized that mere regulation or licensing of a private entity is insufficient
to establish state action. The state must be directly responsible for the specific conduct
challenged, such as through overt encouragement or delegation of a traditionally public function.
Here, Penelee’s refusal to install the meter was compelled by its filed tariffs and the
UCC, not by any alleged interference from city officials.? Under Penelec’s Tariff Rule 6,
electrical service may only be provided upon receipt of an inspection certificate from an

RG
It would be absurd for this Court to assume that Penelec would have acted against its Tariff, in a discretionary
manner, and installed the meter with an invalid inspection. Furthermore, the record suggests that Penelec was in the
process of evaluating whether or not to install the meter when Zimmerman appeared.
13

authorized local agency. [ECF No. 23-6]. It is undisputed that the Plaintiff displayed a certificate
from EKE, an entity not recognized to perform inspections in the City of Erie. Thus, regardless
of any communications with city officials, Penelec was independently prohibited from
proceeding with the installation under its own policies.
Even assuming, arguendo, that City Official Zimmerman engaged in improper conduct,
Plaintiff has failed to demonstrate that Penelec acted as a willful participant in any unlawful
directive, as opposed to a regulated entity complying with neutral obligations. The ALJ record
confirms that Zimmerman communicated with Penelec employee Ryan Bogle during Penelec’s
on-site assessment of the Property for meter installation. (ECF No. 23-4 at 39). Critically,

however, Penclec’s refusal to install and energize the meter was independently justified under its
authorized regulatory duties—grounds upon which it expressly relied. (See ECF No. 18 at
Exhibit D). Thus, no actionable nexus exists between Zimmerman’s alleged misconduct and
Penelec’s lawful exercise of its own discretionary authority.
Symbiotic Relationship Test
The Third Circuit’s decision in Crissman v, Dover Downs Ent. Inc., 289 F.3d 231, 241
(3d Cir. 2002), clarifies the Burton "symbiotic relationship" test for state action. See Burton v.
Wilmington Parking Authority, 365 U.S. 715 (1961). Under Burton, if a sufficiently
interdependent relationship exists between a private entity and the state, then the private party’s
conduct may be "fairly attributable" to the state——not because the state directly compelled the
action, but because the parties’ intertwined interests render the private actor an extension of
government authority. Crissman 289 F.3d at 241. The analysis is fact-intensive, requiring courts

to "sift[] facts and weigh[] circumstances" to determine whether the state’s involvement imbues
private conduct with the "color of law." Id. at 234, quoting Burton, 365 U.S. 715 at 722 (1961).

14

Here, Plaintiff alleges that Penelec’s refusal to install the second meter constitutes state
action because of an interaction between a Penelec employee and Zimmerman. The crux of
Plaintiff’s theory is that this exchange created a "meeting of the minds" sufficient to transform
Penelec’s decision into governmental conduct. .
The facts here, when viewed in Plaintiff's favor, do not support a Burton-style symbiotic
relationship. The record reveals that a Penelec employee, upon being approached by
Zimmerman, reviewed the inspection documentation and followed Penelec’s own tariff
obligations. While the employee did show the documents to Zimmerman, he still independently
concluded that the meters could not be energized because the inspections were not conducted by
the City of Erie or BIU—not solely because Zimmerman objected. The employee explicitly
states (in part):
"The [inspection stickers] were dated 6/04/23 and were not from the City of Erie
or BIU. Although the upgrade of the electric service here meets the CGES, [the
meter] shouldn’t be energized until approval from the City of Erie is received.
[The second meter] should be put on hold as well pending review from the City of
Erie’s electrical inspector, as it was inspected by someone other than the City or
BIU."
(ECF No 18 at Exhibit D). This language demonstrates that Penelec’s decision was based on its

own internal compliance protocols as it relates to requisite inspections and not blind deference to
Zimmerman’s zoning concerns, While Zimmerman’s intervention may have prompted the
additional review, the ultimate determination rested on Penelec’s independent assessment of the
inspection—a routine application of utility policy, not evidence of a "j oint beneficial enterprise"
with the City.
The critical distinction lies in Penelec’s unilateral decision-making: the employee
reviewed the inspection documents, applied Penelec’s internal policies, and reached an
independent conclusion based on the utility’s requirements-—not Zimmerman’s directives. At

15

most, Zimmerman’s objection served as a catalyst for Penelec to exercise its own judgment,
much like a customer complaint might trigger a routine review. That is the essence of private
business operations, not state action. The complete absence of any ongoing coordination, mutual
benefit, or delegation of authority between Penelec and the City forecloses any finding of a
"symbiotic relationship" under Burton. Without more, a single interaction—where a private
entity applied its own policies—cannot satisfy the "color of law" requirement a threshold issue
for its § 1983 claims.
I. CONCLUSION
For the foregoing reasons, the Court will grant Penelec’s motion to dismiss [ECF No. 22]
as to Plaintiff's 42 U.S.C. § 1983 claims. Because these federal claims fail to state a cognizable
cause of action, the Court declines to exercise supplemental jurisdiction over Plaintiffs
remaining state-law claim for promissory estoppel under 28 US.C. § 1367(c)(3).
An appropriate Order follows.

16

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11135302. Public record. Not legal advice.