S9cMNoR 6 July 14, 20212021 David P. Zambito Direct PhonePhone 717-703-5892717-703-5892 Direct Fax 215-989-4216 VIA E -FILING Direct Fax 215-989-4216 VIA E-FILING [email protected] mbitotkozen. com Rosemary Chiavetta, Secretary Pennsylvania Public Utility Commission Commonwealth Keystone BuildingBuilding 400 North Street, 2nd Floor –- FilingFiling RoomRoom Harrisburg, PA 17120 Re: Robert Fidiam v. Talen Energy Marketing,Marketing, LLC;LLC; DocketDocket No. No. C-2021-3027172 C-2021-3027172 Preliminary Objections ofof TalenTalen EnergyEnergy Marketing,Marketing, LLCLLC Dear Secretary Chiavetta: Enclosed forfor filing with the PennsylvaniaPennsylvania Public UtilityUtility CommissionCommission areare thethe PreliminaryPreliminary Objections of Talen Energy Marketing, LLC inin thethe aboveabove --referencedreferenced mattermatter.. CopiesCopies havehave beenbeen served as shown on the attachedattached CertificateCertificate ofof Service.Service. Please contact me if you have any question or concern about this filing. ThankThank you.you. COZEN O'CONNOR By: David P. Zambito CounselCounsel for Talen Energy Marketing, LLC DPZ:kmg Enclosure cc: Per CertificCertificateate of Service Debra Raggio, Esq. 1717 North SecondSecond StreetStreet Suite 14101410 Harrisburg, PA 17101 717.703.5900 877.868.0840 717.703.5901 FaxFax cozen.com BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION Robert Fidiam v. Talen Energy Marketing, LLC : Docket No. C-2021-3027172 CERTIFICATE OF SERVICE I hereby certify that I have this 14th day of July, 2021 served a true copy of the foregoing Preliminary Objections of Talen Energy Marketing, LLC upon the parties, listed below, in accordance with the requirements of 52 Pa. Code § 1.54 (relating to service by a party). SERVICE VIA E-MAIL AND FIRST CLASS MAIL Robert Fidiam 104 Millard Street Elmhurst, PA 18444 [email protected] __________________________________ David P. Zambito, Esq. Counsel for Talen Energy Marketing, LLC VERIFICATION I, Erica Hough, hereby state that the facts set forth above are true and correct to the best of my knowledge, information and belief and that I expect to be able toprove the same at a hearing held in this matter.I understand that the statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 (relating to unsworn falsification to authorities). Date: _ July 13.2021 Erica Hough()AA Counsel Talen Energy Marketing, LLC LEGAL126813414 1 BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION Robert Fidiam, Complainant : : v. : Docket No. C-2021-3027172 : Talen Energy Marketing, LLC, Respondent : ___________________________ NOTICE TO PLEAD ___________________________ To: Robert Fidiam 104 Millard St. Elmhurst, PA 18444 [email protected] You are hereby notified that an Answer to the enclosed Preliminary Objections of Talen Energy Marketing, LLC (“Talen”) is due within 10 days of the date of service pursuant to 52 Pa. Code § 5.101(b). All pleadings, such as an Answer to Preliminary Objections, must be filed with the Secretary of the Pennsylvania Public Utility Commission with a copy served on counsel for Talen and the Office of Administrative Law Judge. File with: With an electronic copy to: Rosemary Chiavetta, Secretary David P. Zambito, Esq. Pennsylvania Public Utility Cozen O'Connor Commission 17 North Second Street, Suite 1410 PO Box 3265 Harrisburg, PA 17101 Harrisburg, PA 17105-3265 Telephone: (717) 703-5892 https://efiling.puc.pa.gov/ Fax: (215) 989-4216 Email: [email protected] ________________________________ David P. Zambito, Esq. Counsel for Talen Energy Marketing, LLC Date: July 14, 2021 BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION Robert Fidiam, Complainant : : v. : Docket No. C-2021-3027172 : Talen Energy Marketing, LLC, Respondent : PRELIMINARY OBJECTIONS OF TALEN ENERGY MARKETING, LLC TO: CHIEF ADMINISTRATIVE LAW JUDGE CHARLES E. RAINEY, JR.: Pursuant to 52 Pa. Code § 5.101(a) of the regulations of the Pennsylvania Public Utility Commission (“Commission” or “PUC”), Talen Energy Marketing, LLC (“Talen”) submits the following Preliminary Objections to the Formal Complaint (“Complaint”) filed by Robert Fidiam (“Mr. Fidiam” or “Complainant”), which the Commission electronically served on Talen on July 9, 2021. Pursuant to 52 Pa. Code § 5.101(c), Talen is filing all its preliminary objections at this time. In addition, as permitted by 52 Pa. Code § 5.101(e)(1), Talen is not filing an Answer at this time because one of its preliminary objections is insufficient specificity of the Complaint. Talen respectfully requests that the Commission: (1) dismiss the Complaint in its entirety, with prejudice, due to legal insufficiency; (2) dismiss the Complaint in its entirety, without prejudice, due to insufficient specificity of the pleading; (3) dismiss the Complaint in its entirety, without prejudice, due to the failure to join a necessary party (Interstate Gas Supply, Inc. d/b/a IGS Energy (“IGS Energy”)); or (4) dismiss the Complaint, in part, due to lack of jurisdiction to grant the requested relief. 1 In support of these Preliminary Objections, Talen states as follows: I. INTRODUCTION 1. Talen is an electric generation supplier (“EGS”) licensed by the Commission to supply electric generation service to retail customers in Pennsylvania (Utility Code 110098). 2. Complainant is a residential customer of electricity in the service territory of PPL Electric Utilities Corp. (“PPL”). 3. The Complaint, filed on July 1, 2021, alleges that Talen “slammed” Mr. Fidiam by transferring his electric generation service without his authorization on or about May 31, 2011. Complainant further alleges that he only recently became aware of this alleged “slamming.” Complaint ¶¶ 2 and 4. 4. Attached to Mr. Fidiam’s Complaint is a June 17, 2021 letter from PPL (the “PPL Letter”) stating that PPL was switching Mr. Fidiam’s electric generation service from IGS Energy to PPL. PPL further stated that it received an enrollment notice from “the supplier” on May 31, 2011. Complaint, p. 7. 5. Mr. Fidiam requests compensation from Talen for overpaying for electric generation service. He also asks that Talen be penalized for “slamming.” Complaint ¶ 5. 6. Talen did not exist on May 31, 2011. Talen was formed in 2015 when its predecessor (PPL Energy Plus, LLC (“PPL Energy Plus”)) was spun off from PPL Corporation and changed its name to Talen Energy Marketing, LLC. Customers were notified in advance of this transaction. Attachment 1. 7. At the time Talen was formed, it provided electric generation services to residential, small commercial, industrial and governmental customers, Attachment 2, but Talen sold its 2 residential book of business (together with certain other retail accounts) to IGS Energy in 2017. Talen provided its customers with advance written notice of the assignment of their electric generation services contracts. Attachment 3. 8. Talen suspended its offer to supply electric generation services to residential and small commercial customers in September, 2017. Attachment 4. Talen has not yet resumed offering electric generation services to residential customers. 9. Talen has had no residential customers of its electric generation supply services since September, 2017. 10. When Talen transferred its residential book of business to IGS Energy, Talen also transferred to IGS Energy the records pertaining to Talen’s residential customers at that time. After a reasonable search of its existing records, Talen has no record of a customer named Fidiam, or the address listed on the Complaint, or the PPL bill account number shown on the PPL Letter. Consequently, Talen is unable to determine whether Mr. Fidiam was ever a customer of Talen and if so, when he was a customer of Talen. II. ARGUMENT A. Applicable Legal Standards 11. The Commission’s Rules of Administrative Practice and Procedure permit the filing of preliminary objections.1 All preliminary objections must be raised at one time.2 The Commission’s procedure regarding the disposition of preliminary objections is similar to that utilized in Pennsylvania civil practice.3 1 52 Pa. Code § 5.101(a)(1)-(7). 2 52 Pa. Code § 5.101(c). 3 Equitable Small Transportation Intervenors v. Equitable Gas Co., 1994 Pa. P.U.C. LEXIS 69 (July 18, 1994). 3 12. Under Section 5.101(a) of the Commission’s regulations, preliminary objections must specifically state 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; and (7) Standing of a party to participate in the proceeding. 13. The moving party may not rely on its own factual assertions but must accept for the purposes of disposition of the preliminary objection all well-pleaded, material facts of the other party, as well as every inference fairly deducible from those facts.4 However, the Commission need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations or expressions of opinion.5 14. In deciding the preliminary objections, the Commission must determine whether, based on the well-pleaded factual averments of the party, recovery or relief is possible.6 15. While the filing of a formal complaint generally entitles the complainant to a formal hearing, “the Commission may dismiss any complaint without a hearing if, in its opinion, a hearing is not necessary in the public interest.”7 B. Dismissal, With Prejudice, Based on Lack of Legal Sufficiency, 52 Pa. Code § 5.101(a)(4) 16. Paragraphs 1-15 are incorporated herein by reference. 4 County of Allegheny v. Cmwlth., 490 A.2d 402 (Pa. 1985). 5 Stanton-Negley Drug Co. v. Dep’t of Pub. Welfare, 927 A.2d 671, 673 (Pa. Cmwlth. 2007). 6 Dep’t of Auditor General, et al. v. SERS, et al., 836 A.2d 1053, 1064 (Pa.