PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON. Entered: August 17,2015. AHMED SALAU, Princeton, Mercer County, Complainant,

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1 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON Entered: August 17,2015 CASE NO MC-FC AHMED SALAU, Princeton, Mercer County, Complainant, MERCER WRECKER SERVICE, INC., a corporation, Defendant. This Decision dismisses the case. RECOMMENDED DECISION PROCEDURAL HISTORY On March 13, 2015, a Consumer Complaint was forwarded to the Commission from the Office of the Attorney General. In that Complaint, Ahmed Salau (Complainant) alleged that his vehicle was illegally towed by Mercer Wrecker Service, Inc. (Defendant) from Athens, West Virginia and from Pipestem, West Virginia. The Complainant further alleged that the Defendant is claiming $5,100 in storage fees and refused to give an invoice for the amount claiming to be owed. On the copy of the Complaint that was forwarded, the Defendant had written on the form denying the allegations and stating that the CompIainant had retrieved his personal belongings from the vehicle on October 24,2014. On April 15: 2015, Coinmission Staff filed its Initial Joint Staff Memorandum stating that it was continuing to investigate the case and recommending the case be referred to the Division of Administrative Law Judges. On that date, Staff filed Data Requests upon the Complainant and Defendant requesting additional information to assist in the investigation. On April 22, 2015, the Defendant filed its Answer explaining the circumstances surrounding the tow of the Complainant s vehicle. The Defendant stated that, on April 16, 2014, it received a call from a property owner to tow the Complainant s vehicle from the property. The vehicle was towed and has been in storage since that time. The Defendant faxed an invoice to the

2 Complainant on one occasion, but refused to send a second invoice when requested by the Complainant. The Defendant stated that it has already been to court over this matter on another occasion. The Defendant represented that it is entitled to the charges that have accrued and that the Complainant is just trying to get out of paying the charges. On April 28, 2015, a Commission Referral Order was issued that referred this matter to the Division of Administrative Law Judges for a decision to be rendered on or before October 9, On May 7, 2015, the Defendant filed its responses to Staffs Data Requests. The Defendant provided a copy of an invoice reflecting $100 for the tow charge and $20 a day for storage which, as of October 6, 2014, amounted to $2,180. The Defendant stated that it already has been to court over this matter and in that proceeding Mr. Salau was found responsible for the tow and storage charges. The Defendant included a copy of an Order from a hearing that was held in the Circuit Court of Mercer County, West Virginia wherein witness testimony was taken regarding the tow. On May 8, 2015, the Complainant filed his responses to Staffs Data Requests. The Complainant stated that Concord University and certain police officers requested his vehicle be towed. The Complainant disclosed Concord University President Kendra Boggess, Concord University Police Officers Mark Stella and Dawn Rae Smith, and Athens Police Officer Charles Lowe as being responsible for the tow. Additionally, the Complainant stated that the reason he was delayed in filing his complaint is because he was incarcerated from March 31, 2014 to December 17,2014. On June 11, 2015, Commission Staff filed its Final Joint Staff Memorandum. Staff reviewed the charges for the tow and storage of the Complainant s vehicle. The Defendant s tariff allows for $15 per day for outside storage, not $20 per day that is being charged by the Defendant. Staff recommended the Defendant recalculate Mr. Safau s invoice to reflect storage charges of $15 per day. On July 1,2015, a Procedural Order was issued granting the parties an additional ten days to respond to Staffs final recommendations. On July 13, 2015, the Complainant filed an objection to Staffs recommendations. The Complainant does not believe that a reduction in storage fees is a proper remedy in this case since his vehicle was illegally towed, a receipt was refused, and items in the vehicle were disgorged. DISCUSSION On November 6, 20 14, this matter was fully heard in the Circuit Court of Mercer County, West Virginia before the Honorable Omar J. Aboulhosn. In that hearing, sworn testimony was taken from all witnesses involved in the tow of the Complainant s vehicle. Mike Roles of Mercer

3 Wrecker provided telephone records and testified that he received a call on April 16, 2014 to tow the Complainant s truck in Speedway, West Virginia. Sergeant Lowe of the Athens Police Department testified that he arrested Mr. Salau on March 31, 2014 in the faculty parking lot of Concord University. After several days, Sgt. Lowe was contacted by Concord University Chief Police Officer Mark Stella to have the vehicle moved or towed. Mr. Salau s wife, the victim in the criminal matter, and her grandmother picked up the vehicle to save towing fees and drove it to Pipestem, West Virginia. After learning that the truck would have to be returned to Mr. Salau and afraid that he would be coming to retrieve the vehicle, Mr. Salau s wife contacted Sgt. Lowe to have the vehicle towed at which time he contacted Mercer Wrecker. Concord University Chief of Police Mark Stella testified that Mr. Salau s vehicle was causing problems where it was parked at the University and he instructed Concord University Police Officer Dawn Rae Smith to have the vehicle moved. Officer Smith testified that she received orders to move the vehicle and that it was moved sometime before April 15, Krista Thompson, Mr. Salau s wife and victim in the criminal matter, testified that she and her grandmother retrieved the vehicle from Concord University s parking lot and drove it to Pipestem, West Virginia. Officer Smith gave the keys to the truck to Ms. Thompson so she could move the vehicle. Ms. Thompson had Sgt. Lowe contact Mercer Wreck to tow the vehicle because she was concerned about having the vehicle at her residence. In the Circuit Court proceeding, Mr. Salau argued that the State is responsible for the towing and storage fees because Sgt. Lowe assisted his wife in calling Mercer Wrecker. Further, Mr. Salau argued that the truck should not have been towed or moved since he was a student of Concord University. The Court recognized that the truck was parked in a faculty parking lot and Mr. Salau was not a faculty member and did not have a valid permit to park in the faculty parking lot. In conclusion, the Court denied Mr. Salau s Motion to release his vehicle and found him responsible for the towing and storage fees. All of the parties and witnesses involved with the tow of the Complainant s vehicle have already provided sworn testimony to the facts which was summarized by Judge Aboulhosn in his Order dated November 12, 2014, in Case No. 14-F-310-OA. The issues and the parties in this proceeding are the same as those in the Circuit Court proceeding, and no new issues have been asserted by the Complainant. Judicial notice of the testimony in the Circuit Court proceeding will be taken in this matter making a further hearing unnecessary. All of the witnesses disclosed by the Complainant in this matter have already testified under oath. The Commission is vested with jurisdiction to regulate the fees and charges and the practices and acts of wrecker companies involved in third-party tows. It is without question that this case involves a third-party tow since the owner of the vehicle (the Complainant) did not request the tow. Based upon the sworn testimony provided in the Circuit Court proceeding, the 3

4 tow was proper since Mercer Wrecker was called by Sgt. Lowe, on behalf of Ms. Thompson. to tow the Complainant s vehicle. The Defendant stated that it provided an invoice to the Complainant on one occasion and has filed a copy of that invoice in this proceeding. Staffs investigation of the rates and charges for the tow and storage fees revealed that the Defendant was overcharging for storage fees and Staff recommended the Defendant recalculate Mr. Salau s invoice to reflect storage charges of $15 per day. Since the tow was proper, the Defendant should recalculate the Complainant s storage fees based upon $15 per day and this matter should be dismissed. FINDINGS OF FACT 1. Ahmed Salau alleged that his vehicle was illegally towed by Mercer Wrecker Service, Inc. from Athens, West Virginia and from Pipestem, West Virginia and the Defendant is claiming $5,100 in storage fees and refused to give an invoice for the amount claiming to be owed. (Filing, March 13, 2015.) 2. This matter was fully litigated in the Circuit Court of Mercer County, West Virginia on November 6, (Filing, May 7,2015.) 3. The Complainant s vehicle was illegally parked at Concord University. (Id.) 4. The Complainant s wife moved the vehicle from the parking lot at Concord University to her residence in Pipestem, West Virginia. ) Id. ( 5. The Complainant s wife requested Sgt. Lowe of the Athens Police Department contact the Defendant to have the Complainant s vehicle towed. (Id.) 6. The Complainant s vehicle has been in storage at the Defendant s facility since April 16,2014. ) Id. ( 7. The Defendant s Commission approved tariff permits $15 per day for outdoor storage. (Final Joint Staff Memorandum, June 11,201 5.) 8. The Defendant provided an invoice to the Complainant on one occasion and filed a copy of the invoice in this case. (Answer, April 22,2015; Filing, May 7,2015.) CONCLUSIONS OF LAW 1. Since the Defendant s tariff allows a charge of $15 per day for outdoor storage, it is reasonable to require the Defendant to recalculate the Complainant s bill using the commission approved storage rate. 4

5 2. Since there was no wrongdoing on part of the Defendant for towing the Complainant's vehicle, it is reasonable to dismiss the case. ORDER IT IS, THEREFORE, ORDERED that Mercer Wrecker Service, Inc. recalculate the Complaint's storage fees based upon $15 per day. IT IS FURTHER ORDERED that this matter be dismissed and removed from the Commission's docket of open cases. The Executive Secretary is ordered to serve this Order upon the Commission and its Staff by hand delivery, upon all parties of record who have filed an e-service agreement with the Commission by electronic service and upon all other parties by United States Certified Mail, return receipt requested. Leave is granted to the parties to file written exceptions supported by a brief with the Executive Secretary of the Commission within fifteen days of the date of this Order. If exceptions are filed, the parties filing exceptions shall certify that all parties of record have been served the exceptions. If no exceptions are filed, this Order shall become the Order of the Commission, without further action or order, five days following the expiration of the fifteen day time period, unless it is ordered stayed by the Commission. Any party may request waiver of the right to file exceptions by filing an appropriate petition in writing with the Executive Secretary. No such waiver, however, will be effective until approved by order of the Commission. KBW:s:lc aa K. B. Walker Administrative Law Judge Pubhc Service Commission 5 of West Vngmia