IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kisha Dorsey, Petitioner v. No. 519 C.D Public Utility Commission, Submitted October 24, 2014 Respondent BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE COHN JUBELIRER 1 FILED February 24, 2015 Kisha Dorsey, pro se, petitions for review of the February 19, 2014 Order of the Public Utility Commission (Commission) denying her petition for reconsideration of the Commission s November 22, 2013 Order that modified the Initial Decision 2 of an Administrative Law Judge (ALJ) ordering the establishment 1 This case was reassigned to the majority writer on January 7, Section 1.8 of the Commission s regulations defines an Initial Decision as [a] decision by a presiding officer which becomes final unless timely exceptions are filed by a participant, the (Continued )

2 of a payment agreement between Ms. Dorsey and Philadelphia Gas Works (PGW). On appeal, Ms. Dorsey expresses her frustration and confusion over not receiving a payment agreement after the ALJ ordered one in the Initial Decision and argues that the Commission erred by modifying the Initial Decision without considering her health conditions, income constraints, and payments made on her behalf by the Department of Public Welfare. 3 Given our narrow scope of review over denials of petitions for reconsideration, and discerning no abuse of discretion, we are constrained to affirm. I. Background On July 29, 2012, Ms. Dorsey filed a Formal Complaint [4] (Complaint) with the Commission against [PGW]. (Commission Op., February 19, 2014, at 2.) In her Complaint, Ms. Dorsey requested that the Commission establish a payment agreement between herself and PGW because she was unable to pay her gas utility bills and had received a notice indicating that her utility service was being terminated. (Commission Op., February 19, 2014, at 2.) PGW filed an Answer on August 2, 2012, in which it denied the allegations and provid[ed] additional allegations of fact regarding prior payment agreements between Ms. Dorsey and Commission requests review upon its own motion or as otherwise established by the act. 52 Pa. Code 1.8. Services. 3 The Department of Public Welfare is now known as the Department of Human 4 Chapter 14 of the Public Utility Code (Code) relates to protecting responsible customers of public utilities. 66 Pa. C.S Pursuant to Section 1410, a customer, after first contacting a public utility in an attempt to resolve a billing dispute, may file a complaint with the Commission to resolve the dispute. 66 Pa. C.S

3 PGW and Ms. Dorsey s payment history. (Commission Op., February 19, 2014, at 2.) Prior to a hearing on the matter, PGW believed that the parties had settled Ms. Dorsey s Complaint and filed a Certificate of Satisfaction with the Commission. (Commission Op., February 19, 2014, at 2.) However, Ms. Dorsey objected to the Certificate of Satisfaction by letter on February 6, (Commission Op., February 19, 2014, at 2.) Thereafter, an initial hearing before the ALJ was held via telephone on May 10, 2013, where Ms. Dorsey testified on her own behalf and PGW presented one witness and entered six exhibits into the record. (Commission Op., February 19, 2014, at 2.) Based on the evidence presented, the ALJ issued an Initial Decision which set forth the following relevant findings of fact 7. [Dorsey] lives with her two (2) daughters and two (2) granddaughters, all minors, at the Service Address. 8. [Dorsey] has been unemployed since [Dorsey] receives $316 per month in public assistance. 10. [Dorsey] receives $368 per month in food stamps. 11. [Dorsey] does not receive unemployment compensation, child support or any other forms of income. 12. [Dorsey s] monthly household income is $684 ($316 + $368). 3

4 13. On December 19, 2008, [Dorsey] enrolled in PGW s CAP [(Customer Assistance Program)], [5] known as the Customer Responsibility Program (CRP). PGW Exhibit On July 20, 2011, [Dorsey] was removed from PGW s CRP for failure to recertify her income. PGW Exhibit While enrolled in PGW s CRP, [Dorsey] made sporadic payments. PGW Exhibit Since being removed from PGW s CRP, [Dorsey] has defaulted on two (2) Company-issued payment agreements, providing her with 59 and 60 months, respectively, to pay her past due balance. PGW Exhibit The last payment made by [Dorsey] was on October 3, 2011, in the amount of $ PGW Exhibit On March 23, 2012, PGW credited a LIHEAP [6] grant in the amount of $435 to [Dorsey s] account. PGW Exhibits 1, On April 6, 2012, PGW credited a CRISIS [7] grant in the amount of $300 to [Dorsey s] account. PGW Exhibits 1, 5. 5 A [c]ustomer assistance program is defined in the Code as [a]... program sponsored by a public utility for the purpose of providing universal service..., in which customers make monthly payments based on household income and household size and under which customers must comply with certain responsibilities and restrictions in order to remain eligible for the program. 66 Pa. C.S LIHEAP is the Low Income Home Energy Assistance Program, which is [a] federally funded program that provides financial assistance in the form of cash and crisis grants to low-income households for home energy bills. 66 Pa. C.S LIHEAP is administered by the Department of Public Welfare. Id. 7 According to the Department of Public Welfare s regulations, 55 Pa. Code , the CRISIS grant program provides households with up to a $300 annual benefit for weather-related or emergency supply shortage emergencies, 55 Pa. Code , and is part of the Department of Public Welfare s LIHEAP program. For the remainder of the opinion we shall construe this grant as a third LIHEAP grant. 4

5 20. On August 10, 2012, PGW credited a second LIHEAP grant in the amount of $135 to [Dorsey s] account. PGW Exhibits 1, As of the date of the hearing, no payments had been received on [Dorsey s] account in PGW Exhibit [Dorsey] objected to the Certificate of Satisfaction because she was unable to secure the LIHEAP grant needed to pay her missed CRP payments, which is a prerequisite for her re-applying for CRP. PGW Exhibits 4, As of the date of the hearing, [Dorsey s] account balance was $6, PGW Exhibit 1, 24. As of the date of the hearing, [Dorsey s] account balance included $1, in CAP/CRP arrears. (ALJ Initial Decision, Finding of Facts (FOF) 7-24 (footnote omitted).) After weighing the facts and considering Ms. Dorsey s financial and living situations, the ALJ concluded that, despite Ms. Dorsey s troubled payment history, a five year payment plan 8 was appropriate for a portion of her arrearages. (ALJ Initial Decision at 7.) However, the ALJ also concluded that, pursuant to Section 1405(c) of the Public Utility Code (Code), 9 the portion of Ms. Dorsey s arrears that accumulated between December 19, 2008 and July 2, 2011, while she was enrolled in PGW s CRP, could not be subject to a payment agreement. (ALJ 8 Section 1405(a) of the Code authorizes the Commission to establish payment arrangements between a customer and a public utility. 66 Pa. C.S. 1405(a). Section 1405(b)(1) authorizes the Commission to establish a five year payment agreement to resolve an unpaid balance for those with a gross monthly household income level not exceeding 150% of the Federal poverty level. 66 Pa. C.S. 1405(b)(1). Because the ALJ found that Ms. Dorsey s income was less than 100 percent of the Federal poverty level, she established a five year agreement. (ALJ Initial Decision at 7.) 9 66 Pa. C.S. 1405(c) (providing that [c]ustomer assistance program rates... shall not be the subject of payment arrangements negotiated or approved by the commission ). 5

6 Initial Decision at 7.) Under the ALJ s Order, Ms. Dorsey was to pay her current charges plus one sixtieth of the balance accrued each month on her account that was not subject to CAP rates and PGW was ordered to not suspend or terminate Ms. Dorsey s service so long as she kept up to date on the payment schedule. (ALJ Order 5-7.) No party filed exceptions to the ALJ s Initial Decision and Order. However, the Commission decided to exercise its right to review ALJ decisions pursuant to Section 332(h) of the Code, 66 Pa. C.S. 332(h). Upon review, the Commission adopted the ALJ s findings of fact, but modified the ALJ s Initial Decision by refusing to establish a payment agreement between Ms. Dorsey and PGW for any of her arrears. (Commission Op., November 22, 2013, at 3, 5.) The Commission agreed with the ALJ that Ms. Dorsey s request for a payment agreement for the portion of Ms. Dorsey s arrears subject to the CRP must be denied. (Commission Op., November 22, 2013, at 4.) However, the Commission disagreed with the ALJ s decision to establish a payment agreement for the non-crp portion of Ms. Dorsey s arrears. (Commission Op., November 22, 2013, at 5.) In modifying the ALJ s Initial Decision, the Commission noted Ms. Dorsey s poor payment history and her inability to keep prior payment agreements with PGW, the fact that Ms. Dorsey made only sporadic payments while enrolled in the CRP from December 2008 to July 2011, and that Ms. Dorsey s last payment was October 3, 2011, more than eighteen months prior to the May 2013 hearing before the ALJ. (Commission Op., November 22, 2013, at 5.) Thus, the record did not reflect a good faith effort on the part of the customer to pay her utility bills. (Statement of Commissioner Gladys M. Brown, October 31, 2013, at 1.) 6

7 Thereafter, Ms. Dorsey petitioned the Commission for reconsideration. In support of her petition, Ms. Dorsey argued that she did not have ability to pay, that the ALJ incorrectly computed her past due balance, and that her health issues contributed to her arrearages. (Commission Op., February 19, 2014, at 5-6.) In disposing of Ms. Dorsey s petition for reconsideration, the Commission first concluded that Ms. Dorsey s arguments related to her ability to pay were considered in its November 22, 2013 Order and not appropriate for reconsideration. (Commission Op., February 19, 2014, at 5.) Next, the Commission refused to reconsider the ALJ s calculation of Ms. Dorsey s arrearage balance because Ms. Dorsey did not produce any evidence to support her allegation that her past due balance was miscalculated. (Commission Op., February 19, 2014, at 5.) Finally, the Commission held that neither the Code, nor the Commission s Regulations, 52 Pa. Code 1.1 et. seq., permit the Commission to consider a customer s health when setting an initial payment agreement. (Commission Op., February 19, 2014, at 6.) Accordingly, the Commission denied Ms. Dorsey s petition for reconsideration. (Commission Op., February 19, 2014, at 6; Commission Order, February 19, 2014.) This Petition for Review followed. On appeal, Ms. Dorsey expresses her frustration and confusion over not receiving a payment agreement after she thought the ALJ ordered one in July 2013 and argues that the Commission erred by modifying the ALJ s Initial Decision 7

8 without considering her health, income levels, and the three payments made on her behalf by the Department of Public Welfare. 10 II. Commission s Authority to Modify ALJ s Initial Decision Ms. Dorsey s brief expresses her frustration and confusion over not receiving a payment agreement after the ALJ ordered one in the Initial Decision. Ms. Dorsey contends that she thought she had won her case in July 2013 and did not know that the ALJ s Initial Decision had been overturned until November However, Ms. Dorsey did not raise these concerns to the Commission in her petition for reconsideration. Pursuant to Rule 1551(a) of the Pennsylvania Rules of Appellate Procedure, [n]o question shall be heard or considered by the court which was not raised before the government unit. Pa. R.A.P. 1551(a). Accordingly, we cannot entertain Ms. Dorsey s challenge to the Commission s authority to review the ALJ s Initial Decision. Even if this argument was preserved, we could not find that the Commission lacked the authority to review, and modify, the ALJ s Initial Decision. The Commission reviewed the ALJ s Initial Decision pursuant to its authority under Section 332(h) of the Code, 66 Pa. C.S. 332(h), which provides Any party to a proceeding referred to an administrative law judge under section 331(b) may file exceptions to the decision of the administrative law judge with the commission, in a form and manner and within the time to be prescribed by the commission.... If no exceptions are filed, the decision shall become final, without further 10 On September 29, 2014, PGW filed a brief with this Court as intervenor in support of the Commission s February 19, 2014 decision. 8

9 commission action, unless two or more commissioners within 15 days after the decision request that the commission review the decision and make such other order, within 90 days of such request, as it shall determine. Id. (emphasis added). When reviewing the ALJ s Initial Decision, Section 335(a) of the Code provides the Commission with all the powers which it would have in making the initial decision. 66 Pa. C.S. 335(a); see also G.G. & C. Bus Company, Inc. v. Pennsylvania Public Utility Commission, 400 A.2d 941, 944 (Pa. Cmwlth. 1979) (stating that [a] broader grant of power to the Commission in the disposition of initial decisions in cases it chooses to review can scarcely be imagined ). A decision of the ALJ may always be superseded if a contrary decision is reached by the Commission based on substantial evidence. Pennsylvania Retailers Associations v. Pennsylvania Public Utility Commission, 440 A.2d 1267, 1272 (Pa. Cmwlth. 1982). Thus, under the statutory scheme, the Commission is empowered to reverse an initial decision of an ALJ any time it disagrees with any of the findings of the ALJ so long as the Commission s findings are based on substantial evidence. Accordingly, the Commission acted within the process authorized by the Code when it reversed the ALJ s Initial Decision. Ms. Dorsey also seems to question whether she should have been given notice that the Commission was reviewing the ALJ s Initial Decision or the opportunity to respond. If a party disagrees with an ALJ s Initial Decision there is a procedure for filing written comments (called exceptions). 52 Pa. Code When that occurs, the other party is given the opportunity to reply to the exceptions, and the Commission will then review the exceptions and the reply. 52 9

10 Pa. Code 5.535(a). No exceptions were filed here and, thus, there was no right to reply to exceptions. We note that, with the ALJ s Initial Decision, the Commission also sent a letter from the Secretary of the Commission which states, at the very end, that [i]f no Exceptions are received, the decision of the Administrative Law Judge may become final without further Commission action. You will receive written notification if this occurs. (Letter from the Secretary of the Commission to Ms. Dorsey and PGW (July 17, 2013).) We understand that it may be confusing to receive an Initial Decision which states that it grants the customer s request for a payment agreement (ALJ Initial Decision at 1), contains an Order purporting to do so (ALJ Initial Decision at 8-9), and does not, on its face, indicate that the finality of the Order is subject to further activity. However, although Ms. Dorsey is understandably disappointed and upset to have the payment agreement she believed she was awarded by the ALJ s Initial Decision taken away from her, the Commission has the authority under the Code to do so. III. Abuse of Discretion Next, Ms. Dorsey argues that her petition for reconsideration should have been granted because the Commission erred when it modified the ALJ s Initial Decision without considering her health and financial limitations, and that her past due balance was miscalculated. 11 Ms. Dorsey argues further that the Commission 11 Ms. Dorsey has attached a series of documents to her brief in support of her arguments. (Dorsey s Br., Appendices A, B.) However, we cannot consider these documents because they are not included in the certified record. City of Pittsburgh Commission on Human Relations v. DeFelice, 782 A.2d 586, 593 n.10 (Pa. Cmwlth. 2001). For purposes of appellate review, what is not of record does not exist. Id. (quoting Spink v. Spink, 619 A.2d 277, 280 n.1 (Pa. Super. 1992) (citations omitted)). Even if we did consider Ms. Dorsey s documents, it is unclear how they support her arguments. 10

11 should have considered all the payments received on her account via the LIHEAP as payments by her. Ms. Dorsey contends that, based on her income and the payments made through LIHEAP, her outstanding bill would have been caught up and she asks the courts to review all payments and to calculate my income at the time and present. (Dorsey s Br. at 6-7.) Our narrow scope of review of the Commission s Order denying reconsideration in this regard is limited to whether the Commission has abused its discretion. Pennsylvania Game Commission v. Pennsylvania Public Utility Commission, 651 A.2d 596, (Pa. Cmwlth. 1994); see also Department of Transportation v. Pennsylvania Public Utility Commission, 284 A.2d 330, 332 (Pa. Cmwlth. 1971) (stating that [t]his Court cannot reverse the Commission in its refusal of a petition for further hearing or its failure to rescind or amend its previous order unless a clear abuse of discretion by the Commission is shown ). The Commission s denial of Ms. Dorsey s petition for reconsideration is reviewed within two levels of discretion. First, the Commission has the discretion whether to act on a petition for reconsideration. West Penn Power Company v. Pennsylvania Public Utility Commission, 659 A.2d 1055, 1065 & n.21 (Pa. Cmwlth. 1995). Second, the Commission s decision to not establish a payment agreement is within its discretion. While the Code provides the Commission with the authorization to establish a payment agreement, the Code does not mandate that the Commission establish such an agreement. 66 Pa. C.S

12 In Blumenschein v. Housing Authority of Pittsburgh, 109 A.2d 331, (Pa. 1954), the Pennsylvania Supreme Court explained our review of issues committed to the discretion of an administrative agency as follows By a host of authorities in our own and other jurisdictions it has been established as an elementary principle of law that courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency s duties or functions. That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion. Id. (emphasis in original) (footnote omitted). After an exhaustive search of the record, we conclude that the Commission did not flagrantly abuse its discretion or execute its duties in a purely arbitrary fashion. The Commission did not abuse its discretion when it rejected Ms. Dorsey s argument regarding her financial situation because the issue was addressed in the Commission s November 22, 2013 Opinion and no new facts or circumstances arose since the November Order. See Pennsylvania Game Commission, 651 A.2d at 602 (holding that the Commission s denial of a petition for rehearing was not an abuse of discretion [b]ecause no new facts or circumstances arose that were not available at the time of the prior hearings ). The Commission s refusal to address Ms. Dorsey s contention that her arrearages were 12

13 miscalculated was not arbitrary because Ms. Dorsey did not provide any evidence to substantiate, or prove, her contention. See Mid-Atlantic Power Supply Association v. Pennsylvania Public Utility Commission, 746 A.2d 1196, 1200 (Pa. Cmwlth. 2000) (stating [m]ere bald assertions, personal opinions or perceptions do not constitute evidence ). Further, the Commission s decision to not consider Ms. Dorsey health concerns is not an abuse of discretion for two reasons. First, unless the customer provides a medical certification in accordance with Section 1406(f) of the Code, 12 the Commission is only required to consider a customer s income when determining whether to establish a payment arrangement. 66 Pa. C.S Second, Ms. Dorsey never provided the Commission with any evidence regarding her medical condition or how her medical condition impacted her ability to pay her utility bill. Mid-Atlantic Power Supply, 746 A.2d at Finally, the Commission did consider payments made to Ms. Dorsey s account through LIHEAP during the time period at issue in this matter. Although the Commission found that the last payment Ms. Dorsey made to her account was on October 23, 2011, the Commission found further that three LIHEAP payments Pa. C.S. 1406(f). Section 1406(f) provides as follows Id. A public utility shall not terminate service to a premises when a customer has submitted a medical certificate to the public utility. The customer shall obtain a medical certificate verifying the condition and shall promptly forward it to the public utility. The medical certification procedure shall be implemented in accordance with commission regulations. 13

14 were made to Ms. Dorsey s account in 2012 but that, as of the date of the May 10, 2013 hearing, no payments had been received on [Ms. Dorsey s] account in (FOF ) In other words, when considering whether to establish a payment agreement, the Commission did consider all payments made to Ms. Dorsey s account up until the date of the hearing, whether made by Ms. Dorsey personally, or via LIHEAP. It appears that Ms. Dorsey may also believe the Commission should have included payments made to her account through LIHEAP after the record closed on May 10, (See Dorsey s Br., Appendix A.) However, Ms. Dorsey did not inform the Commission of these additional payments in her petition for reconsideration or request that the Commission accept this additional evidence and credit these LIHEAP payments to her account. Accordingly, although Ms. Dorsey s dire financial situation and alleged health concerns gives us pause, we conclude that the Commission s decision to deny Ms. Dorsey s petition for reconsideration was within the bounds of its discretion. This Court cannot supplant the Commission s judgment with our own. Blumenschein, 109 A.2d at 335. For the foregoing reasons, the Commission s February 19, 2014 Order denying Ms. Dorsey s petition for reconsideration is affirmed. RENÉE COHN JUBELIRER, Judge 14

15 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kisha Dorsey, Petitioner v. No. 519 C.D Public Utility Commission, Respondent O R D E R NOW, February 24, 2015, the February 19, 2014 Order of the Public Utility Commission, entered in the above-captioned matter, is AFFIRMED. RENÉE COHN JUBELIRER, Judge

16 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Kisha Dorsey, No. 519 C.D Petitioner Submitted October 24, 2014 v. Public Utility Commission, Respondent BEFORE HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge OPINION NOT REPORTED DISSENTING OPINION BY SENIOR JUDGE FRIEDMAN FILED February 24, 2015 Because I would conclude that payments credited to Kisha Dorsey s Public Gas Works (PGW) account constitute payments made by Dorsey, I would reverse the order of the Public Utility Commission (Commission). In declining to issue Dorsey a payment agreement on that portion of her arrearages that were not subject to the PGW consumer assistance program (CAP), 1 the Commission noted that Dorsey had a troubled payment history and Dorsey s last payment to PGW on her past-due balance occurred on October 3, 2011, approximately 18 months before the special agent s hearing. Although October 3, 1 Section 1403 of the Public Utility Code (Code), 66 Pa. C.S. 1403, defines a CAP as [a] plan or program sponsored by a public utility... in which customers make monthly payments based on household income and household size.

17 2011, was Dorsey s last payment to PGW, payments were nonetheless made to Dorsey s PGW account via two LIHEAP 2 grants in March and August 2012 and a CRISIS 3 grant in April I can find no statutory authority for distinguishing between payments made by Dorsey and grant payments made on Dorsey s behalf. Because payments had been made on Dorsey s past-due balance subsequent to October 2011, I would conclude that the Commission erred in denying Dorsey a payment agreement. ROCHELLE S. FRIEDMAN, Senior Judge 2 Section 1403 of the Code, 66 Pa. C.S. 1403, defines LIHEAP as the Low Income Home Energy Assistance Program. LIHEAP is [a] federally funded program that provides financial assistance in the form of cash and crisis grants to low-income households for home energy bills. 3 CRISIS benefits provide households with up to $300 per year for a home heating emergency. 55 Pa. Code RSF - 2 -