Opinion
No. 1951 C.D. 2010
02-03-2012
Bozena Dziadas, Petitioner v. Pennsylvania Public Utility Commission, Respondent
OPINION NOT REPORTED MEMORANDUM OPINION
Bozena Dziadas (Complainant) petitions pro se for review of the August 3, 2010, order of the Pennsylvania Public Utility Commission (Commission) denying Complainant's exceptions and adopting the initial decision of a Commission administrative law judge (ALJ) that dismissed the formal complaint filed by Complainant under the Public Utility Code (Code). We affirm.
66 Pa.C.S. §§101-3316.
On May 20, 2009, Complainant filed a formal complaint with the Commission against PPL Electric Utilities Corporation (PPL) alleging that her household used less electricity than PPL's meter and website indicated. She asked the Commission to direct PPL to only charge her for the energy used by her household. On June 17, 2009, PPL filed an answer to the complaint denying the material allegations raised therein, and averring that a meter test showed that the meter was 99.86% accurate in recording the electricity consumed. (Commission Opinion at 2.)
On September 28, 2009, a telephone hearing on the complaint was conducted before a Commission ALJ. Complainant appeared pro se and testified in support of the complaint. PPL appeared through counsel and presented the testimony of Carole Burnett, a customer representative, and Kevin George, a customer contact representative, and six exhibits. (Commission Opinion at 2.)
Complainant testified that she checked the PPL website to monitor her account usage. (N.T. at 5.) Complainant stated that she turned off her electricity for approximately 23 minutes on December 25, 2008 and PPL's website did not show a drop in usage. (Id.) She testified that she had four houseguests for eight days beginning on July 15, 2008, and her bill showed the same amount of energy was consumed as the same period in 2007 and 2009. (Id. at 5-6.) She stated that she checked a usage graph on the PPL website regularly between November 2008 and the date of the hearing and that the graph did not match her actual usage. (Id. at 6.) Complainant asserted that the website indicates that she uses more electricity for cooking than she knows that she uses. (Id. at 8.)
"N.T." refers to the transcript of the hearing conducted before the ALJ on September 28, 2009.
Complainant also testified that the dollar amount indicated on the website for running her refrigerators and freezer was higher in the winter than in the summer, whereas it should have been cheaper in the winter because a refrigerator and the freezer were located in the garage. (N.T. at 8, 12.) She stated that the website shows her household using more electricity than she knows is used every day at 8:00 a.m. because at that time her husband is at work, her children are at school, she and her mother are sleeping, and they all shower at night. (Id. at 15.) Complainant testified she would like to have a meter that is not connected with the computer site so that she can read it herself and know how much electricity the household is using. (Id. at 16).
Burnett testified that Complainant has an automatic meter reading (AMR) device on her meter and that Complainant cannot be disconnected from the PPL computer. (N.T. at 43.) Burnett stated that a meter has two components: the first is a dial that the customer or company representative can read; the second is a transmitter that sends a daily read to PPL through the electric lines. (Id. at 43, 44.) She testified that the information on the website did not reflect current usage because there was a two-day lag for the electric usage information to get from the meter to the website, and the information on the website is broken down into daily and hourly usage. (Id. at 34, 44.) She testified that the bill analyzer on the website is a "guesstimate" based upon the total usage in a month, and the usage attributed to a certain appliance in a customer's home is only an estimate. (Id. at 35.) She also identified PPL Exhibit 1 as Complainant's account activity statement, and PPL Exhibit 2 as a record of contacts between Complainant and PPL regarding her usage. (Id. at 36, 39-40.)
Section 56.2 of the Commission's regulations defines AMR, in relevant part, as "[m]etering using technologies that automatically read and collect data from metering devices and transfer that data to a central database for billing and other purposes....," and provides that "[m]eter readings by AMR shall be deemed actual readings for the purposes of this chapter." 52 Pa. Code §56.2. Section 56.321(7) of the regulations further provides that "[u]tility service to a dwelling may be terminated for ... [t]ampering with meters or other utility equipment." 52 Pa. Code §56.321(7).
PPL Exhibit 1 is a summary of Complainant's account which shows, inter alia, the amount billed, the amount paid, the degree days, the days used, and the kilowatt-hours (kwh) used for each month for the period of September 21, 2005, through August 31, 2009.
George testified that he visited Complainant's home on January 6, 2009, and prepared a worksheet during the visit that he identified as PPL Exhibit 3. (N.T. at 50.) George stated that the primary source of heat in Complainant's home is an electric heat pump. (Id. at 51.) He testified that Complainant's thermostat was set to "emergency heat" so that the usage would be higher than if the heat pump was operating on its normal operation. (Id.) He opined that this main heat source operating in emergency mode for 12 hours per day could use 3,600 kWh over a 30 day period. (Id. at 54; PPL Exhibit 3.)
George also testified Complainant's basement was block-walled, insulated, and unfinished, with a running 4,000 watt heater. (N.T. at 52.) He stated that the 4,000 watt heater could use approximately 2,880 kWh in a 30 day period. (Id. at 53.) George also stated that the bedrooms in Complainant's home had two stand-alone 1500 watt electric heaters that were plugged in, and two of the heaters in the basement that were unplugged. (Id. at 53.) He opined that the two plugged-in heaters could use 1,080 kwh in a monthly billing cycle, the two refrigerators and the freezer would use 535 kwh, and the electric water heater would use 650 kwh based on water usage by three adults and two teenagers. (Id. at 53, 54, 55, 56; PPL Exhibit 3.) George stated that 8,640 kWh could be attributable solely to Complainant's heat sources, and that her home did not use more than 6,000 kWh in any month of 2007, 2008, or 2009. (Id. at 54, 55.) George stated that the actual meter readings conveyed by the AMR were in line with the dial readings he observed on the meter at the house, adding that he removed the meter to test it for accuracy, and the meter was found to be 99.86% accurate. (Id. at 57-58, 60.)
George also identified: (1) two pages of PPL Exhibit 3 as readings from the AMR; (2) the first page of PPL Exhibit 4 as a copy of an e-mail from Annette Flynn to him regarding Complainant's telephone call; (3) the second page of PPL Exhibit 4 as a report of meter accuracy regarding a test of Complainant's meter, removed March 27, 2009, showing accuracy of 99.86%; (4) the third page of PPL Exhibit 4 as a letter from him to Complainant explaining the results of the meter test; (5) PPL Exhibit 5 as a printout of the actual daily usage reading of the AMR system; and (6) PPL Exhibit 6 as a printout of the April 20, 2009, informal decision of the Commission's Bureau of Consumer Services. (N.T. at 58, 59, 60, 60-1, 61-2, 63; PPL Exhibits 4, 5 and 6.)
On April 6, 2010, the case was transferred to another Commission ALJ for disposition. On April 20, 2010, the new ALJ issued an initial decision dismissing the complaint. The ALJ noted that Complainant's actual use never exceeded the potential use of over 6,000 kWh per billing cycle. The ALJ found that Complainant's usage was greater in the winter than in the summer because her main heat source, the heat pump, was set on the "emergency heat" level and she used numerous space heaters. The ALJ also noted that the four years of data in PPL Exhibit 1 indicated that the fluctuation in consumption could be explained by looking at the degree days for that cycle as compared to the same month of the other four years, i.e., that the usage increased when it was colder in the winter months rather than when it was hotter in the summer months. The ALJ determined that there was not enough of an inconsistency over the four years of data in PPL Exhibit 1 to support a finding of inaccurate billing and Complainant did not meet her burden of proving that she was improperly billed for electric service. The ALJ concluded that there was no evidence that PPL provided inadequate service or had violated the Code, the Commission's regulations, or a Commission order. As a result, the ALJ issued an order dismissing the complaint based on Complainant's failure to sustain her burden of proof. (Initial Decision at 2, 7-12.)
Section 61.1 of the Board's regulations defines a "degree day" as "[a] unit used in estimating quantities of fuel and power consumption based on a daily ratio of consumption the mean temperature below 65°F." 52 Pa. Code §61.1. Thus, the ALJ noted that "[h]eating degree days are summations of negative differences between the mean daily temperature and the 65[-degree] base; cooling days are summations of positive differences from the same base." (Initial Decision at 7 n. 3) (citation omitted.)
On May 8, 2010, Complainant filed exceptions to the initial decision with the Commission. On August 3, 2010, the Commission filed an opinion and order disposing of Complainant's exceptions. With respect to Complainant's assertion that the information on PPL's website was inaccurate, the Commission noted Burnett's testimony "[t]hat there is a two-day lag from when the daily consumption is recorded on the Complainant's meter to when it is posted on the PPL web page. [Burnett] also explained that the website does not provide readings that are less than one-hour intervals." (Commission Opinion at 7.) (citations omitted.) Because Complainant did not present any new arguments to refute this testimony, the Commission denied her exception regarding the accuracy of the information on the website. (Id.)
Regarding Complainant's claim regarding higher usage in the winter, the Commission stated:
On January 6, 2009, PPL's customer service representative George visited the Complainant's home and took an inventory of the electric consuming devices. A worksheet containing the results of the inventory was submitted into the records as PPL Exhibit 3. In her Initial Decision, the ALJ noted some of the devices, such as a 4,000 watt space heater in an uninsulated basement that was running at the time of Mr. George's visit. The ALJ also noted two 1,500 watt space heaters that were plugged in, two additional electric space heaters that were not plugged in, and the fact that the thermostat for the electric heat pump was set in "emergency mode." The ALJ found that PPL's high bill investigation, which determined that the Complainant's potential monthly use was over 6,000 KWH per billing cycle, to be credible. We note that the Complainant's highest metered consumption was 5,834 KWH in January 2009 for 34 days usage. January 2009 had the greatest number of heating degree days of any monthly
billing cycle during the four-year billing history presented on the record.(Commission Opinion at 9) (citations and footnote omitted.)
The Commission also noted the consistency of the consumption levels indicated in PPL Exhibit 1 stating:
Comparing the Complainant's consumption levels for the months of July and August 2008 to July and August 2009 indicates little deviation in [Complainant's] monthly billed consumption levels. For the thirty-two days ending July 21, 2008, the Complainant's meter registered an average of 54.19 KWH/day compared to an average of 56.32 KWH/day for the thirty days ending July 22, 2009. Similarly for the twenty-nine days ending on August 19, 2008, the Complainant's billed consumption was an average of 56.03 KWH/day compared to the 57.07 KWH/day for the thirty days ending August 21, 2009....(Commission Opinion at 8.)
The Commission determined that Complainant had failed to sustain her initial burden of proving overbilling under Waldron v. Philadelphia Electric Company, 54 Pa. P.U.C. 98 (1980). Accordingly, the Commission issued an order dismissing Complainant's exceptions, adopting the ALJ's initial decision, and dismissing Complainant's complaint. (Id. at 10-11.) Complainant then filed the instant petition for review.
The Commission has developed an evidentiary rule in overbilling cases, known as the Waldron rule, to address a complainant's lack of technical expertise regarding meter accuracy. As the Pennsylvania Supreme Court has noted:
In a complaint for overbilling by a customer of a public utility, the legislature has placed the burden of proof upon the complainant. See [66 Pa.C.S. § 332(a)]. The P.U.C. promulgated a rule in [Waldron] which provided that in such proceedings a complainant may establish a prima facie case that cannot be defeated, in limine, by the complainant's failure to prove the utility's meter was misread or otherwise inaccurate. Recognizing that technical expertise to test meter accuracy may not be available to a complainant, the P.U.C. in Waldron established other evidentiary criteria for determination upon the whole record of whether a complainant has established a prima facie case.
Under these requirements, a complainant may establish a prima facie case by showing that his power usage for the billing period in question was unchanged from earlier periods and his bill for the same period was higher than previous bills. The burden of going forward, not the burden of proof, as [the customers'] erroneously contend, then shifts to the utility which must rebut the complainant's case with co-equal evidence. Under Waldron the fact finder measures the weight of all the evidence so that the mere proof by the utility that its power measuring devices were accurate is no longer the sole determinant as to whether there is a basis to a complaint of overbilling.
Thus, essentially the Waldron Rule is an evidentiary device by which a utility customer's complaint of overbilling is protected from dismissal during the early stages of litigation. Even if the rule's requirements are met, a complainant remains obligated to prove his case after the utility presents its rebuttal evidence....
The Commission is the ultimate finder of fact in formal complaint proceedings; it weighs the evidence and resolves conflicts in the testimony. Section 335(a) of the Code, 66 Pa.C.S. §335(a); Milkie v. Pennsylvania Public Utility Commission, 768 A.2d 1217, 1220 n. 7 (Pa. Cmwlth. 2001). This Court's scope of review of a Commission order is limited to determining whether constitutional rights have been violated, whether an abuse of discretion or error of law has been committed, and whether the Commission's findings are supported by substantial evidence. Burleson, 501 Pa. at 436, 461 A.2d at 1236.
In this appeal, Complainant alleges that the Commission erred in dismissing the complaint. In support, Complainant raises the same arguments and cites the same evidence that she presented to the Commission regarding the purportedly incorrect higher usage in the winter months and the purportedly inaccurate usage information reflected on the PPL website.
In the Statement of Questions Presented portion of her brief, Complainant also asks whether she has a right to have a non-AMR meter installed. However, in her formal complaint, Complainant merely stated, with respect to the relief she was seeking, "I want the Public Utility Commission to order PPL Electric Utilities to charge me only for energy my household uses." (C.R. Item No. 2 at 5.) At the hearing before the ALJ, Complainant stated that if she were to prevail in the proceedings she wanted a meter that was not connected to the PPL computer. (N.T. at 14-16.) Complainant did not assert that she was entitled to have a different type of meter; as a result, this issue will not be addressed for the first time by this Court in this appeal. Section 703(a) of the Administrative Agency Law, 2 Pa.C.S. § 703(a); Pittsburgh-Johnstown-Altoona Express, Inc. v. Pennsylvania Public Utility Commission, 554 A.2d 137, 145 (Pa.Cmwlth. 1989).
Complainant also raises claims in the argument portion of her brief that are not contained in the Statement of Questions Presented. These additional allegations of error have been waived for purposes of appeal. See Pa.R.A.P. 2116(a) ("[N]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby...."); G.M. v. Department of Public Welfare, 954 A.2d 91, 93 (Pa. Cmwlth. 2008) ("[H]owever, because Petitioner failed to include this issue in the Statement of Questions Involved portion of his brief, this issue is waived....") (citations omitted).
Under the Waldron rule, a complainant may establish a prima facie case by showing that the disputed bill was abnormally high when compared to prior bills even though usage has not changed. Burleson; Milkie . The burden of going forward then shifts to the utility to rebut the complainant's evidence with co-equal evidence, but the ultimate burden of persuasion remains with the complainant. Burleson; Milkie. The Commission must assess the weight and credibility of the evidence, but it is not required to give credit or give greater weight to the complainant's evidence. Id. A complainant will not have met her burden of proof if the utility presents evidence found to be of co-equal or greater weight. Id. Because the Commission reached its decision in this case by reviewing and evaluating the weight and probative value of the evidence, the proper focus of our review is whether the Commission's decision is supported by substantial evidence. Id., 768 A.2d at 1220.
Burnett's and George's testimony and PPL Exhibit 1 amply support the Commission's findings regarding why Claimant's meter reflected a higher usage in the winter months than in the summer months and the consistency of the usage during these periods over the relevant time period. (See N.T. at 40-41, 52-60; PPL Exhibit 1.) Likewise, Burnett's testimony amply supports the Commission's findings regarding the accuracy of the information reflected on the website. (See N.T. at 34-35, 43-44.) In short, the Commission's decision in this case is supported by substantial evidence reflecting that Complainant's claims are without merit.
Accordingly, the Commission's order is affirmed. PER CURIAM ORDER
AND NOW, this 3rd day of February, 2012, the August 3, 2010, order of the Pennsylvania Public Utility Commission is affirmed.
Burleson v. Pennsylvania Public Utility Commission, 501 Pa. 433, 435-36, 461 A.2d 1234, 1235-36 (1983) (emphasis in original).