OPINION BY Judge McCULLOUGH.

Presently before this Court is the application of UGI Utilities, Inc. (UGI) for partial summary relief seeking a declaration that several provisions of Administrative Ordinance No. 16-2013 (the Ordinance) enacted by the City of Lancaster (City) are invalid and preempted by the Public Utility Code (Code), 66 Pa.C.S. §§ 101-3316, and an order enjoining enforcement of these provisions.

I. Facts and Procedural History

The underlying facts of this case are not in dispute. UGI is a Pennsylvania corporation and a regulated public utility providing natural gas and other utility services to residential and business customers throughout eastern and central Pennsylvania. UGI serves approximately 355,000 customers in a service territory encompassing portions of 16 Pennsylvania counties. Within the City and its immediately surrounding suburban area, UGI serves approximately 42,000 customers, including 18,000 customers in the City alone. In order to serve its customers, UGI has developed a network of underground natural gas distribution mains, service lines, and other facilities. UGI maintains approximately 54 lineal miles of underground distribution lines within the City's streets and other public rights-of-way.

On May 28, 2013, the City enacted Administrative Ordinance No. 2-2013 for the purpose of implementing a comprehensive program for management of the City's rights-of-way, including management of public utilities and public utility facilities within these rights-of-way. The City also adopted, on this same day, a resolution which set forth a fee schedule related to activities and uses in the public rights-of-way.1 On September 17, 2013, UGI filed a petition for review in the nature of a complaint in this Court's original jurisdiction seeking declaratory and injunctive relief, naming the City, Charlotte Katzenmoyer, the City's Director of Public Works, City Counsel, and the PUC as defendants.2

II. December 17, 2013 Ordinance

On December 17, 2013, the City enacted the Ordinance at issue, which repealed the previously enacted Administrative Ordinance No. 2-20133 and implemented another program for management of the City's rights-of-way, again including management of public utilities and public utility facilities within these rights-of-way. The City relied on the powers granted to it under the Third Class City Code (TCCC)4 and the Home Rule Charter and Optional Plans Law5 in enacting the Ordinance.6

The Ordinance describes the City's rights-of-way as a "valuable resource and asset, not only for City purposes, but also for the benefit of third-party users, who rely upon the Rights-of-Way of the City for the installation and maintenance of various facilities owned and operated by such third-parties to their economic benefit.. . ." (Ordinance at 2.) The Ordinance stated that the management and maintenance of the public rights-of-way represented a "significant continuing operational and capitol cost" for the City, which, by extension, is passed on to City taxpayers, residents, and business owners. Id. The Ordinance also stated that it was necessary to recoup these maintenance and management costs from "the actual users of such facilities" in the City's rights-of-way. (Ordinance at 3.)

Section 263B of the Ordinance addresses PUC-regulated utilities and purports to impose certain duties on public utilities and grant various powers to the City. For example, section 263B-2 requires each public utility to submit to the City's Department of Public Works two paper copies and one electronic copy of a map depicting and certifying the location of all existing facilities within the City's rights-of-way. (Ordinance at 6, 7.) Section 263B-3 authorizes the City to conduct inspections to ensure that utility facilities within the rights-of-way do not constitute a public safety hazard and remain in compliance with PUC standards. Additionally, section 263B-4(9) requires each public utility that has been issued a street opening permit by the City to submit an updated map or maps. Further, section 263B-5 permits the City to impose an annual maintenance fee "in connection with the ongoing use and occupancy of City Rights-of-Way.7 (Ordinance at 8.)

III. Amended Petition for Review

UGI thereafter filed an amended petition for review again seeking declaratory and injunctive relief. UGI argued that the Ordinance violated the policy of the Commonwealth for a uniform, state-wide regulation of public utilities and public utility facilities; was preempted by the Commission's exclusive authority over the location, construction and maintenance of all public utility facilities; violated UGI's statutory right under section 1511(e) of the Business Corporation Law of 1988, 15 Pa.C.S. § 1511(e), to use public rights-of-way without charge;8 and imposed excessive fees, charges, costs, and assessments that will have a material adverse impact on utility rates and services. UGI sought a declaration that the aforementioned provisions of the Ordinance were preempted by the Code and, hence, were invalid and unenforceable, and that the imposition of the new maintenance and sidewalk and street opening fees, as well as the cost of requiring it to submit maps and drawings, were excessive and unreasonable.

The City filed preliminary objections alleging that this Court lacked jurisdiction because the PUC was not an indispensable party to this action. The City further alleged a demurrer as to all counts stating that it acted entirely within its police powers in adopting the Ordinance and that UGI failed to plead how the specific Ordinance provisions interfere with the PUC's exclusive jurisdiction or are preempted by the Code. UGI filed a response denying these allegations. By order dated April 28, 2014, this Court overruled the City's preliminary objections and directed the City to file an answer to UGI's amended petition for review.

The City later filed an answer denying the material allegations of UGI's amended petition for review and reiterating in new matter its previous assertions that it acted entirely within its police powers in adopting the Ordinance and that UGI failed to demonstrate how the specific Ordinance provisions interfere with the PUC's exclusive jurisdiction or are preempted by the Code. The City also asserted that the PUC has no jurisdiction to regulate rights-of-way fees, including maintenance fees, and that such fees are a legitimate method of cost recovery. Both UGI and the PUC filed answers to this new matter, denying these assertions.

IV. Application for Summary Relief

UGI thereafter filed its application for summary relief which is presently before this Court.9 UGI alleges that no material facts are in dispute and that its right to relief is clear. UGI seeks a declaration that sections 263B-2, 263B-3, 263B-4(9), and 263B-5 of the Ordinance are invalid.

V. Discussion

A. Preemption

"Municipalities are creatures of the state and have no inherent powers of their own. Rather, they possess only such powers of government as are expressly granted to them and as are necessary to carry the same into effect." Huntley & Huntley, Inc. v. Borough Council of Oakmont, 600 Pa. 207, 964 A.2d 855, 862 (2009). Additionally, under the law of preemption, "even in areas over which municipalities have been granted power to act, the state may bar local governing bodies from legislating in a particular field." Hoffman Mining Company v. Zoning Hearing Board of Adams Township, 612 Pa. 598, 32 A.3d 587, 593 (2011).

In Hoffman Mining Company, our Supreme Court noted that there are three generally recognized types of preemption:

Id. at 593-94 (citations omitted).

B. Exclusive Authority of the PUC

The exclusive authority of the PUC has been extensively discussed in the companion case of PPL Electric Utilities Corporation v. City of Lancaster, 125 A.3d 837, 2015 WL 5974272 (Pa.Cmwlth., No. 462 M.D.2013, filed October 15, 2015), and need not be recited here.

C. City of Lancaster Ordinance

We begin this section of the opinion by noting that the issues and the arguments advanced by the parties in this appeal relating to sections 263B-3 and 263B-5 of the Ordinance are substantially the same as those set forth and disposed of by this Court in the companion case of PPL Electric Utilities Corporation. In that case, we granted, in part, the application for summary relief filed by PPL Electric Utilities Corporation, concluding that section 263B-3 of the Ordinance is preempted by the Code, and, hence, is invalid. However, we denied the application for summary relief with respect to section 263B-5 of the Ordinance, concluding that this section was not preempted by the Code and noting that the issues regarding the reasonableness of the annual maintenance fee imposed under section 263B-5 of the City's Ordinance, and whether said fee is a tax, may require further factual development before this Court. We incorporate that opinion by reference and reach the same conclusions herein.

We now turn to sections 263B-2 and 263B-4(9) of the Ordinance, both of which, as discussed above, require a public utility to submit and/or update maps and engineering specifications depicting and certifying the location of all existing facilities within the City's rights-of-way. Section 1501 of the Code imposes certain obligations on all public utilities regarding the character of its service and facilities, including that all such "service and facilities shall be in conformity with the regulations and orders of the [PUC]." 66 Pa.C.S. § 1501.10

The PUC has promulgated a specific regulation addressing the maps, plans, and records of a public utility. Section 59.37 of the PUC's regulations requires that:

52 Pa.Code § 59.37.

Sections 263B-2 and 263B-4(9) of the City's Ordinance impose additional requirements on public utilities, mandating that each public utility submit to the City two paper copies and one electronic copy of a "map or maps and engineering specifications" depicting and certifying the location of all its existing and/or updated facilities within the City's rights-of-way. These sections further require the public utility to reimburse the City the cost of converting paper maps into electronic form or the cost of converting electronic maps from one format to another. In essence, these sections allow the City to become a regulator itself, which contradicts the intent of our General Assembly in enacting the Code, as set forth in the long-established case law more fully discussed in the companion case of PPL Electric Utilities Corporation. See, e.g., Duquesne Light Company v. Upper St. Clair Township, 377 Pa. 323, 105 A.2d 287 (1954) (regulation of utilities expressly committed to the PUC); York Water Company v. York, 250 Pa. 115, 95 A. 396, 397 (1915) ("Under the guise of a police regulation cities cannot undertake to determine the reasonableness of rates charged by public service corporations, nor can they prescribe regulations relating to the facilities, service and business of such corporations."); PECO Energy Company v. Township of Upper Dublin, 922 A.2d 996, 1005 (Pa.Cmwlth.2007) ("the legislature intended the Public Utility Code to preempt the field of public utility regulation"). Thus, we must conclude that sections 263B-2 and 263B-4(9) of the Ordinance are preempted by the Code, and, hence, are invalid.

Conclusion

Summary relief is appropriate where there are no genuine issues of material fact and the right to relief is clear as a matter of law. Pa.R.A.P. 1532(b); Hospital & Healthsystem Association of Pennsylvania. A century of case law has firmly established that the General Assembly's intent in enacting the Code and its predecessor statute was to provide for the uniform, statewide regulation of public utilities and public utility facilities. Indeed, this Court has expressly held that "the legislature intended the Public Utility Code to preempt the field of public utility regulation." Township of Upper Dublin, 922 A.2d at 1005. For the reasons stated above, we conclude that sections 263B-2, 263B-3, and 263B-4(9) of the City's Ordinance are preempted by the Code, and, hence, are invalid. However, we conclude that section 263B-5 of the City's Ordinance, by which the City imposes an annual right-of-way maintenance fee, is not a public utility regulation and, hence, is neither preempted by the Code nor invalid.

Because no genuine issues of material fact remain to be decided and UGI has, in part, established a clear right to relief as a matter of law, we grant UGI's application for summary relief and enter judgment in its favor with respect to sections 263B-2, 263B-3, and 263B-4(9) of the Ordinance. Further, the City is specifically enjoined from enforcing these sections. We deny UGI's application for summary relief as to section 263B-5 of the Ordinance. As noted above, the issues regarding the reasonableness of the annual maintenance fee imposed under section 263B-5 of the City's Ordinance, and whether said fee is a tax, may require further factual development before this Court.11

Judge McGINLEY dissents.

Judge LEADBETTER joins in part but dissents to maintenance fees (Section 263B-5) and maps (Section 263B-2 and B-4(9)) only.

ORDER

AND NOW, this 15th day of October, 2015, the application for summary relief filed by UGI Utilities, Inc., is granted as to sections 263B-2, 263B-3, and 263B-4(9) of the December 17, 2013 Ordinance enacted by the City of Lancaster (City). We hereby declare sections 263B-2, 263B-3, and 263B-4(9) of the Ordinance to be preempted by the Public Utility Code, and enjoin the City from enforcing these sections. UGI's application for summary relief as to section 263B-5 of the Ordinance is denied. Section 263B-5 is not preempted by the Code.

DISSENTING OPINION BY President Judge PELLEGRINI.

For the reasons set forth in PPL Electric Utilities Corporation v. City of Lancaster and Pennsylvania Public Utility Commission, 125 A.3d 837, 2015 WL 5974272 (Pa.Cmwlth., No. 462 M.D.2013, filed October 15, 2015), I respectfully dissent.

Judge McGINLEY joins in this dissenting opinion.