Benlian v. Peco Energy Corp.

RAFI BENLIAN Plaintiff, pro se v. PECO ENERGY CORPORATIONand EXELON CORPORATION Defendants

CIVIL ACTION NO. 15-2128

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

July 20, 2016

NITZA I. QUIÑONES ALEJANDRO, J.

MEMORANDUM OPINION

INTRODUCTION

On April 21, 2015, Plaintiff Rafi Benlian ("Benlian"), proceeding pro se, commenced a civil action against Defendants PECO Energy Company and Exelon Corporation (collectively "Defendants"), alleging that during the period of April to June 2013, the electric service to his home was shut off by Defendants' employees. Benlian asserts that Defendants' conduct (1) violated his equal protection and procedural due process rights guaranteed by the Fourteenth Amendment of the United States Constitution; (2) constituted an unlawful conspiracy to interfere with his civil rights under 42 U.S.C. § 1985(3); and (3) violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("§ 504"). [ECF 3].

On August 31, 2015, Defendants filed the instant motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).¹ Even though Benlian filed several letters, afterthe motion to dismiss was filed, addressing his issues and objections, Defendants contend that their motion is unopposed, because Benlian has not filed a formal response to the motion consistent with Local Rule of Civil Procedure 7.1(c). Following a careful review of these issues, and for the reasons herein articulated, Defendants' motion to dismiss is granted.

BACKGROUND

The relevant factual allegations, as gleaned from Benlian's 40-page amended complaint, [ECF 3], and which this Court must accept as true and construe in the light most favorable to Benlian,² are summarized as follows:

Rafi Benlian is a resident of Havertown, Pennsylvania, (Am. Compl. ¶ 3), and a 100% service disabled veteran. Id. at ¶¶ 5, 8. Benlian has been diagnosed as suffering from rheumatoid arthritis, immune system deficiency, hearing loss and hyperacusis,³ hernias, Restless Leg Syndrome, and difficulty of breathing. Id. at ¶¶ 1, 5, 7. In 1995, the Department of Veterans Affairs or Veterans Administration ("VA") provided Benlian with pulmonary breathing equipment, which he has used daily ever since for six to nine hours. Id. at ¶ 8. To accommodate his particular health needs, Benlian moved into a room in the rear of his home which had been converted from a car port. Id. at ¶ 9.

Defendant PECO Energy Company ("PECO") is a Pennsylvania electric and gas utility provider, and a subsidiary of Defendant Exelon Corporation ("Exelon"), which is headquartered in Illinois. Id. at 2, 26-27, ¶¶ 10, 14. Prior to the summer of 2012, Benlian had had no disputes with Defendants. Id. at ¶ 10.

In October 2008, the Pennsylvania General Assembly approved Act 129 of 2008 ("Act 129"), which required electric distribution companies with more than 100,000 customers to install digital smart meter technology. 66 Pa. C.S. § 2807(f); Am. Compl. ¶¶ 11-12.⁴ Act 129 does not permit customers to opt out of the installation of smart meters and mandates that "[e]lectric distribution companies shall furnish smart meter technology." 66 Pa. C.S. § 2807(f)(2). InOctober 2009, the U.S. Department of Energy awarded Defendants $200 million for the smart meter/smart grid technology. Am. Compl. ¶ 12.⁵

Sometime in mid-August 2012, Benlian's analog meter located in the rear of his home was replaced with a smart meter. Id. at ¶ 17. Some days thereafter, Benlian began experiencing unusual physical symptoms, including headaches with neck pain, waking several times during the night to debilitating pain while hooked up to the pulmonary breathing equipment, and a worsened arthritic condition. Id. at ¶ 19-20. Benlian had not experienced these symptoms prior to the installation of the smart meter. In addition, Benlian noticed that his hearing aids made pulsating and hissing sounds within 30 feet from the smart meter, id. at ¶ 21, and that the family cat, which favored a habitat five to six feet from the exterior wall on which the smart meter was installed, became lethargic, started vomiting, and lost weight. Id. at ¶ 23.

Benlian attempted to reach a supervisor of Defendants to report the negative impact he had experienced and observed since the smart meter's installation. He spoke with Defendants' customer service representatives, who advised him that the smart meter installation was mandatory and that customers could not opt out and, therefore, there was nothing that could be done. Id. at ¶¶ 24-25. One week later, Benlian noticed that the smart meter's cover appeared to have been replaced to make it look as if the meter had been there for a longer time, rather than just recently installed. Id. at ¶ 26.

After researching the purported dangers of electromagnetic emissions that emanated from smart meters, Benlian concluded that the onset of his unusual physical symptoms was due to the smart meter. On September 10, 2012, Benlian submitted an "Affidavit Notice" demanding that Defendants remove and replace the smart meter with a no-radiation emitting analog meter; otherwise, he would replace it himself with an analog meter. Id. at ¶¶ 27-34.⁶ That same day, an employee of PECO called Benlian to inform him that PECO received the Affidavit Notice and that the smart meter had been on his property for ten years. Id. at ¶ 34. Benlian surmised that PECO ignored his Affidavit Notice; he removed the smart meter and shipped it back to Defendants, along with photographs of themeter reading prior to its replacement, and a copy of the Affidavit Notice with the following command: "DEFAULT - NO TIMELY OR VALID REBUTTAL OR COMPLIANCE." Id. at ¶¶ 35-36. Within days of replacing the smart meter with an analog meter, Benlian noticed that his headaches and neck pain had subsided and his sleep had improved. Id. at ¶ 37. He continued to pay his utility bills. Id. at ¶ 40.

On December 4, 2012, Benlian was notified by PECO that an electric power suspension/shut off ("shut off") was scheduled for December 17, 2012, because he had not provided access to the meter, and was directed to call Defendants to provide such access. Id. at ¶ 41. Benlian contacted Defendants and spoke with "Mr. Ware," who acknowledged that another customer, whose pre-existing medical condition was aggravated by a smart meter, had submitted an Affidavit Notice and Demand for removal of the smart meter, which resulted in Defendants' accommodation of that customer's specific needs by installing a smart meter on a pole in the backyard, away from the house. Id. at ¶¶ 44-45. Mr. Ware represented that such an option could be implemented for Benlian. The scheduled December 17, 2012 shut off did not occur. Id. at ¶¶ 46-47.

On December 22, 2012, Benlian received two letters from Defendants, one from PECO's Medical Certification Verification Department informing him that it had been contacted and requested medical documentation to prove that Benlian had serious medical issues. The second letter advised him of an electricity shut off that would occur on December 26, 2012. Id. at ¶ 49.⁷ In response, Benlian had his physicians, Dr. P. Taylor and Dr. Mark Monaco, submit documentation to PECO. Dr. Monaco also stated that Benlian would need to use the electrically-operated pulmonary equipment for the rest of his life. The documentation from Benlian's doctors purportedly prevented the December 26, 2012 shut off. Id. at ¶ 50.

On April 6, 2013, an employee of Defendants came to Benlian's residence to install a smart meter. Benlian refused entrance and the employee left a shut off notice which was scheduled for April 12, 2013. Id. at ¶ 57. Benlian contacted his doctors who, again, submitted medical documentation to Defendants. The documentation was returned, marked "VOID - We are returning the enclosed request for medical certification, which has been denied." Id. at ¶ 58. The shut off, however, did not occur on April 12, 2013. Id. at ¶ 60.⁸

On April 24, 2013, 12 or more of Defendants' employees arrived at Benlian's residence, wearing hard hats, dark glasses, and no name tags, accompanied by three large specialty trucks and six or seven small trucks, which converged in front of Benlian's property in "a very intimidating manner." Id. at¶ 62. One of the employees, allegedly a supervisor, indicated that they were there to replace Benlian's analog meter with a smart meter, or else the electric power to the house would be shut off. Id. at ¶ 63. When Benlian asked for identification, the employee stated that he was familiar with Benlian's case and that he was "a member of the 'committee' that decided to serve [Benlian] with this ultimatum." Id. at ¶ 64. Benlian protested that the installation of the smart meter would worsen his compromised health condition. Id. at ¶ 65. The electricity, nonetheless, was shut off. Id. at ¶ 66. Benlian, of Armenian descent, likened this incident to that of the Armenian Genocide of 1915, commemorated on April 24, in that PECO's shut-off "arbitrarily deprived R. Benlian of life" without due process, reminiscent of the loss of property, liberty, and lives during the aforesaid historic event. See id. at ¶¶ 61, 67.

Benlian expressed concerns to Defendants about the electrical shut off affecting, among other things, the ability to charge batteries for his hearing aids, cellular phone, and pulmonary apparatus; the lack of heat because the house's gas furnace required an electric motor to circulate air, and the temperatures in mid-April 2013 were as low as the mid-20s Fahrenheit at night and in the early morning hours. Id. at ¶ 76. Conversely, during the last week of May 2013, while Benlian's electricity was still turned off, temperatures reached above 90 degrees which prohibited the use of his pulmonary equipment because it could not be used at temperatures above 83 degrees. As a result, Benlian spent several nights in his car, engine running and windows cracked open, to use the pulmonary equipment. Id. at ¶ 80.

In April 2013, Benlian met

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