P OF WEST VIRGINIA At a session of the OF WEST VIRGINIA in the City of Charleston on the 14th day of April, 1987. CASE NO. 84-680-E-C MARIE WEBSTER, (aka WINIFRED A. GOUDIE), 1000 Washington Street, Harpers Ferry, Jefferson County, vs. THE POTOMAC EDISON COMPANY, a corporation, complainant, Defendant. COMMISSION ORDER AFFIRMING HEARING EXAMINER S DECISION On October 10, 1984, Marie Webster, (also known as Winifred A. Goudie, hereinafter referred to as Complainant) filed a complaint against the Potomac Edison Company, (Defendant). The Complainant alleges that she was denied a hearing and ten days notice of termination of service; the statement of accounts sent to her were incorrect in content and improperly dated; the twenty percent discount allowed to certain low-income residential customers under W.Va. Code $24-2A-1 has not been allowed to her; she is entitled to notice of termination after she has entered into a payment arrangement with the Defendant; the Defendant does not read meters on a timely basis; the Defendant should not be permitted to turn off the electric service to a disabled customer; the Commission rules for termination are unconstitutional; the Defendant s requirement of a physician s statement every month is unacceptable and not in conformity with the PUBLIC SERVlCE COMMISSION OF WEST VIRGINIA
rules; and the Complainants request for kilowatt information from Defendant was not answered. An answer was filed by the Defendant denying any improper acts and contending that its actions were in accordance with the law and Commission Rules. A hearing was held in Charles Town on April 2, 1985 at which time the Complainant did not appear. On May 29, 1985, an Examiner dismissed the Complainant's case for failure to prosecute her case. Exceptions were filed by the Complainant alleging that illness had prevented her appearance at the hearing. On September 25, 1985 a Commission order was entered allowing Complainant an opportunity to present her case. A hearing was held on October 16, 1985 in Charles Town with additional hearings being held on February 6 and 7, 1986 in Harpers Ferry. Appearing at these hearings were the Complainant, pro z; Phillip J. Bray, Esq., Esq., representing the Commission Staff. at the October 16, 1985 hearing. representing the Defendant and Mark Thessin, Mr. Thessin did not appear A decision was entered on March 3, 1987, which dismissed the complaint. On March 9, 1987, Complainant filed a motion for extension of time to file exceptions. She requested an extension of six months. On March 11, 1987, an order was entered granting the Complainant an extension of time for the filing of exceptions until April 2, 1987. On April 3, 1987, exceptions were received from the Complainant coupled with a petition for oral argument before the Commission. The Complainant alleges that the Hearing Examiner's decision is not supported by the evidence, that the Hearing Examiner was incompetent and biased, and that the Commission Rules are unconstitutional. PUELIC SERVICE COMMISSION OF WEST VIRGINIA 2
After consideration of the matters raised by the exception and review of the Hearing Examiner s decision and the supporting records, the Commission is of the opinion that the Hearing Examiner s decision in this matter is supported by the evidence and is consistent with applicable law and Commission policy. Therefore the Commission shall affirm the Hearing Examiner s decision and shall deny the Complainant s request for oral argument. DISCUSSION The Complainant began receiving electrical service from the Defendant on April 16, 1980 in the name of Marie Webster. By June 26, 1983, the Complainant accumulated an unpaid balance of $2,631.20. During that period, the Complainant entered into two installment plans and defaulted on both after approximately one payment on each arrangement. Because of her default on the latter installment payment plan, Complainant s electrical service was terminated on June 6, 1983 and remained terminated until September, 1983, when an installment payment agreement, dated September 13, 1983, was agreed to by the parties. The subsequent termination pursuant to this installment payment arrangement is the termination now under review. The Hearing Examiner concluded that the Complainant had received written notice, a hearing and a hearing decision notice on the termination prior to the execution of the installment agreement. Before the termination complained of, after default of the installment payment agreement, the Defendant gave Complainant notice by personal contact. The Examiner further concluded that the personal contact notice of an impending termination after default on an installment payment agreement is sufficient. In support of the decision, the Hearing Examiner cited OF WEST VIRGINIA 3
a Paul Tassone v. the Potomac Edison Company, Case No. 84-298-E-C (July 17, 1984) citing Oba Massey v. Appalachian Power Company, Case No. 81-241-E-C (April 15, 1982). The Hearing Examiner quoted Conclusions of Law Nos. 1 and 2 which read, A customer who has been faced with termination of service pursuant to Rule 4.08 of the Commission s Rules and Regulations for the Government of Electric Utilities, is entitled to receive the entire scope of the rights provided by that Rule: however, the Complainant is- entitled to receive those rights only one time with regard to any termination of service, complaint or appeal. When a customer enters into a deferred payment arrangement, pursuant to the terms of rule 4.08, that customer is not subsequently entitled to reinvoke the provisions of Rule 4.08 if the customer subsequently defaults on the deferred payment arrangement. 69 ARPSCWV 1424. The Commission is in agreement with the Hearing Examiner s determination on this issue. The Complainant further alleges that the Commission s Electric Rules are unconstitutional, unfair and unreasonable. The Hearing Examiner, in discussing the Complainant s allegations, concluded that the Rules provide notice to a customer of impending termination of service and provide all the protection required by the United States Supreme Court in Memphis Light, Gas and Water Division v. Craft, 436 U.S. 1 (1978). Therefore, the Hearing Examiner concluded that Claimant s argument was without merit. That case held that, In determining what process is due in this case, the extent of our inquiry is shaped by the ruling of the Court of Appeals. We need go no further in deciding this case than to ascertain whether the Court of Appeals properly read the Due Process Clause to require (i) notice informing the customer not only of the possibility of termination but of a procedure for challenging a disputed bill, 534 F. 2d, at 688, and (ii) [an] established [procedure] for resolution of disputes or some specified avenue of relief for customers who dispute the existence of the liability, id., at 689. 436 U.S. at 12. OF WEST VIRGINIA 4
In applying the requirements of this case to the present situation, the Commission find that its Rules meet and exceed the minimum due process requirements. Furthermore, the Hearing Examiner determined that the Complainant had received written notice, a hearing, and a hearing decision notice on the termination prior to an execution of installment agreement on which the Complainant defaulted. After defaulting, Defendant gave Complainant notice by personal contact before termination. The Hearing Examiner also found that Rule 4.08 absolutely requires payment for electric service rendered. The Commission is in agreement with the Hearing Examiner s determination as to the constitutionality of its Electric Rules. The Complainant s final contention is that the Hearing Examiner is incompetent and prejudiced and should be removed from duty. In reading the Complainant s exceptions and the Hearing Examiner s decision, the Commission concludes that the Complainant has not established a prima facie case of incompetency or prejudice on behalf of the Hearing Examiner and therefore this line of argument is without merit. For all of the foregoing reasons, the Commission denies the Complainant s exceptions and denies Complainant s request for oral argument before the Commission. FINDINGS OF FACT 1. On March 3, 1987, a Hearing Examiner entered a decision dismissing the complaint dated October 10, 1984, of Marie Webster, also known as Winifred A. Goudie, against the Potomac Edison Company. 2. On April 3, 1987, the Complainant filed exceptions to the Hearing Examiner s decision and requested oral argument before the OF WEST VIRGINIA 5
Commission. The exceptions alleged that the Hearing Examiner s decision is not supported by the evidence, the Hearing Examiner was incompetent and prejudiced and the Commission s Rules are unconstitutional. CONCLUSIONS OF LAW 1. The Commission will not revise, modify or reverse the Hearing Examiner s decision unless the findings of the Hearing Examiner are contrary to the evidence, unsupported by the evidence, arbitrary, based on mistake of law, based on misapplication of legal principles or contrary to lawful Commission policy or practice. B&O Railroad v. Public Service Commission, 99 W.Va., 130 S.E. 131 (1925); Weirton Ice and Coal Supply Company v. Public Service Commission, 161 W.Va. 141, 240 S.E. 2d 686 (1977); Virginia Electric and Power Co., v. Public Service Commission, 162 W.Va. 202, 242 S.E. 2d 698 (1978); Preston County Liqht and Power Company v. Public Service Commission, 297 F.Supp. 759 (S.D. W.Va., 1969); Mac s Wrecking Service, Inc., M.C. Case No. 3358 (1979). As a matter of law, the Hearing Examiner s decision is supported by the evidence in this case. 2. The Commission s Rules and Regulations for the Government of Electric Utilities meet the minimum due process requirements of Memphis Light and Water Division v. Craft, 436 U.S. 1 (1978). 3. The Complainant has not met her burden of proof in establishing that the Hearing Examiner was incompetent or prejudiced. OF WEST VlRQlNIA 6
... ORDER IT IS, THEREFORE, ORDERED that the exceptions of the Complainant, Marie Webster, also known as Winifred A. Goudie shall be, and hereby are, dismissed, and this case be removed from the Commission's open docket. IT IS FURTHER ORDERED that the Complainant's request for oral argument shall be, and hereby is, denied. IT IS FURTHER ORDERED that the Executive Secretary of the Commission shall serve a copy of this order upon all parties of record by United States First Class Mail. P- 6 COMMISSIONER NJP: gf OF WEST VIRGINIA 7