Opinion
No. 2606 C.D. 2010
01-04-2012
Mark Mazza, Petitioner v. Public Utility Commission, Respondent
OPINION NOT REPORTED
MEMORANDUM OPINION
Mark Mazza (Mazza) petitions for review of an order of the Pennsylvania Public Utility Commission (Commission) adopting the Initial Decision of the Administrative Law Judge (ALJ) sustaining in part and denying in part complaints filed by him against PECO Energy Company (PECO) for failure to provide him with termination notices of his utilities and seeking to compel a reasonable payment arrangement. For the reasons set forth below, we affirm the Commission's order.
PECO supplies Mazza with gas and electricity service at his home. On June 23, 2009, a PECO employee went to Mazza's home to terminate his service because Mazza owed a past-due balance of approximately $6,800, but Mazza objected because he purportedly had not received a notice of termination from PECO. Based on that representation, the employee did not terminate Mazza's service, but informed Mazza that his past-due bill needed to be paid within 15 days or else service would be terminated. Instead of paying the bill, Mazza filed a formal complaint against PECO with the Commission alleging that it had attempted to terminate his service without prior notice and requested that the Commission direct PECO to provide a reasonable payment arrangement. On July 22, 2009, Mazza filed a second formal complaint containing essentially the same allegations, and those complaints were consolidated.
Before the ALJ, Mazza testified that he did not receive any notices of termination from PECO prior to PECO's attempt to terminate service on June 23, 2009. He also claimed that nothing on his monthly bill alerted him that his services would be terminated. Mazza offered as exhibits three bills and one past-due statement from PECO.
By letter dated June 3, 2010, Mazza requested that the hearing be continued for a minimum of 45 days after June 15, 2010. Mazza requested this continuance because he had filed a motion to compel responses to his discovery requests on June 1, 2010. PECO objected to Mazza's discovery request as untimely and argued that further delay would be prejudicial to the resolution and collection for services rendered by PECO. The ALJ denied Mazza's request for a continuance, noting that Mazza had been granted previous continuances and should have been aware of the proper procedure for doing so. The ALJ also cited to the fact that Mazza presented no evidence of filing a motion to compel despite being previously informed of the procedure for discovery. (June 9, 2010 Prehearing Order at 3.)
Teresa Ferrier (Ferrier), a PECO regulatory assessor who investigates and reviews formal complaints filed against PECO with the Commission, described PECO's general procedure for sending and tracking the termination notices. She testified that Mazza's past-due balance had increased to over $8,000; that his payment history was sporadic; and that he had defaulted on two previous payment agreements. She also testified that beginning on April 10, 2008, PECO had sent him several 10-day and 72-hour termination notices in accordance with Commission regulations.
PECO offered into evidence a payment agreement with Mazza dated May 23, 2008, showing a balance due at that time of $2,503.89, and another statement dated December 13, 2009, with an outstanding balance of $5,232.62. Ferrier testified that Mazza defaulted on both agreements by failing to make the required payments to PECO.
PECO attempted to enter as an exhibit a summary of the collection activity on Mazza's account (PECO Exhibit 2), but Mazza objected to PECO Exhibit 2 because he disagreed with the information contained therein stating that he had received termination notices. The ALJ sustained Mazza's objection to PECO Exhibit 2 for lack of foundation, but later, after a foundation had been laid, allowed it into evidence as an exception to hearsay under the business record exception. Mazza continues to object to its introduction, but because we agree with PECO that PECO Exhibit 2 is a record of regularly recorded activity, it falls within the business record exception and is, therefore, admissible.
52 Pa. Code §56.91 provides, in relevant part:
Prior to a termination of service, the utility shall mail or deliver written notice to the ratepayer at least 10 days prior to the date of the proposed termination.
Sustaining in part and denying in part Mazza's complaint, the ALJ determined that Mazza was entitled to a Commission-issued payment agreement, but that Mazza failed to meet his burden of proof with regard to the notice issue. The Initial Decision directed Mazza to make monthly payments consisting of his current bill plus 1/24th of the balance accrued on his account beginning with the first billing due date following the entry of a final Commission Order. The decision further stated that if Mazza failed to adhere to this payment agreement, PECO would be authorized to suspend or terminate his service in accordance with Commission regulations.
By letter dated August 17, 2010, the Commission notified Mazza of the ALJ's decision. This letter also informed Mazza that if he disagreed with the decision, he could file exceptions within 20 days of the issuance date of the letter, i.e., September 6, 2010. Mazza, however, did not file his exceptions until September 29, 2010. On October 1, 2010, the Commission issued a final order, which did not address Mazza's exceptions and closed the case.
52 Pa. Code §5.533(a) provides, in relevant part:
In a proceeding, exceptions may be filed by a party and served within 20 days after the initial, tentative or recommended decision is issued unless some other exception period is provided.
On November 1, 2010, Mazza timely filed a notice of appeal with this Court consisting of the statement, "Pro se Plaintiff Mark Mazza hereby appeals the Pennsylvania Public Utility Commission final order dated October 1, 2010, which is attached hereto." By letter dated November 9, 2010, this Court instructed Mazza to perfect his appeal within 30 days by setting forth his reasons for taking the appeal.
On December 6, 2010, the Commission then issued a subsequent Opinion and Order explaining that "[a]lthough the Exceptions were late filed, we will consider them. However, since a Final Order adopting the ALJ's [Initial Decision] had been entered on October 1, 2010, after the initial deadline for filing Exceptions had passed, we shall treat [Mazza's] Exceptions as a Petition for Reconsideration of our October 1, 2010 Final Order." (December 6, 2010 Opinion and Order at 1, n.1). The Commission ultimately denied Mazza's exceptions and adopted the Initial Decision of the ALJ.
On December 8, 2010, in accordance with our letter, and again referring to the October 1, 2010 order as the order from which he was filing his appeal, Mazza perfected his appeal. In his petition, Mazza raised three issues: (1) whether the Commission erred in failing to consider his exceptions to the ALJ's Initial Decision; (2) whether the Commission's order was supported by substantial evidence; and (3) whether his due process rights were violated by the ALJ's denial of his request for a continuance in order to conduct discovery.
Initially, the Commission contends that Mazza's petition for review should be quashed because it appeals the Commission's October 1, 2010 order, but makes no reference to the December 6, 2010 order. The Commission argues that under Pa. R.A.P. 1701(b)(3), a timely order granting reconsideration renders inoperative any petition for review filed or docketed with respect to the prior order. Because Mazza only appealed from the October 1, 2010 order which it argues is defunct, not the December 6, 2010 order, the Commission argues that his appeal should be quashed. We disagree.
Even though Mazza's exceptions were filed before its October 1, 2010 final order was issued, the Commission treated that filing as a petition for reconsideration of that order. However, under Pa. R.A.P. 1701(b)(3)(ii), the Commission was required to rule on the request for reconsideration within 30 days, after which it was without jurisdiction to do so. Department of Transportation, Bureau of Driver Licensing v. McMahon, 539 Pa. 1, 650 A.2d 36, 37 (1994). Having not done so until December 6, 2010, well after the required 30-day time period, the Commission was no longer empowered to consider the request for reconsideration, and this Court assumed jurisdiction over the appeal. Id. Therefore, the October 1, 2010 order is the appealable order.
There is, however, another procedural impediment that precludes judicial review of this appeal. By failing to file timely exceptions to the ALJ's decision, Mazza waived all issues for purposes of appeal. See Teamsters Local 771 v. Pennsylvania Labor Relations Board, 760 A.2d 496, 501-502 (Pa. Cmwlth. 2000). Because all issues have been waived, there are no issues for us to review regarding the October 1, 2010 order, and, on that basis, the Commission's order is affirmed. PER CURIAM ORDER
Even if we were to address the merits of Mazza's appeal that there was no substantial evidence to support its decision that termination notices were properly sent, and the ALJ abused its discretion in denying its discovery, the result would be no different. PECO's witnesses and documentary evidence constituted more than substantial evidence to support a finding that the required notices were sent. As to his arguments that his rights were violated because the ALJ's denial of his request for a continuance of the June 15, 2010 hearing prevented him from conducting discovery, 52 Pa. Code § 5.331(b) provides that "[a] party shall initiate discovery as early in the proceedings as reasonably possible." Mazza filed a formal complaint with the Commission on July 6, 2009, but did not send PECO a discovery request until April 29, 2010, after a continuance of the initial hearing and the initial hearing itself. Mazza then waited until June 1, 2010, to send PECO a motion to compel. Because the ALJ has the discretion to determine what constitutes an untimely discovery request, Diamond Energy, Inc. v. Pa. Public Utility Commission, 653 A.2d 1360, 1369 (Pa. Cmwlth. 1995), and finding no abuse of discretion, we will not disturb her denial of Mazza's request for a continuance. --------
AND NOW, this 4th day of January, 2012, the Pennsylvania Public Utility Commission's Order, dated October 1, 2010, at C-2009-2118230 and C-2009-2120401, is affirmed.
52 Pa. Code §56.93 provides, in relevant part:
A utility may not interrupt, discontinue, or terminate service without personally contacting the ratepayer or a responsible adult occupant at least 3 days prior to the interruption, discontinuance or termination...For purposes of this section, "personal contact" means: (1) contacting the ratepayer or responsible adult occupant in person or by telephone.