Summary
In Coalition for Safe Electric Power v. Pub. Util. Comm. (1977), 49 Ohio St.2d 207, this court found that the order of the commission had an insufficient evidentiary foundation.
Summary of this case from Stebbins v. Pub. Util. CommOpinion
Nos. 76-851 and 76-892
Decided March 9, 1977.
Public Utilities Commission — Complaint as to service — Dismissal order unsupported by record — Reasonable grounds alleged.
Upon the allegation of reasonable grounds for relief in a complaint filed by any party enumerated in R.C. 4905.26, the Public Utilities Commission of Ohio shall schedule and hold a hearing after giving notice accordingly.
APPEALS from the Public Utilities Commission.
On December 4, 1975, appellants Evelyn Stebbins and the Coalition for Safe Electric Power filed a complaint with the Public Utilities Commission (hereinafter "the commission"), pursuant to R.C. 4905.26. The complaint alleged that the Toledo Edison Company ("Toledo Edison"), the Ohio Edison Company ("Ohio Edison"), and the Cleveland Electric Illuminating Company ("C.E.I.") were in violation of R.C. 4905.48, by virtue of the fact that the companies had "joined together in the signing of contracts for the joint construction, operation, and ownership * * *" of certain nuclear power plants without having obtained the prior approval of the commission. Attached to the complaint were three exhibits, by which appellants sought to establish that the systems of the named utilities were "interconnected."
R.C. 4905.26 reads, in pertinent part, as follows:
"Upon complaint in writing against any public utility by any person, firm, or corporation, or upon the initiative or complaint of the public utilities commission, that any rate, fare, charge, toll, rental, schedule, classification, or service, or any joint rate, fare, charge, toll, rental, schedule, classification, or service rendered, charged, demanded, exacted, or proposed to be rendered, charged, demanded, or exacted, is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of law, or that any regulation, measurement, or practice affecting or relating to any service furnished by said public utility, or in connection with such service, is, or will be, in any respect unreasonable, unjust, insufficient, unjustly discriminatory, or unjustly preferential, or that any service is, or will be, inadequate or cannot be obtained * * * if it appears that reasonable grounds for complaint are stated, the commission shall fix a time for hearing and shall notify complainants and the public utility thereof, and shall publish notice thereof in a newspaper of general circulation in each county in which complaint has arisen. * * *
"The parties to the complaint shall be entitled to be heard, represented by counsel, and to have process to enforce the attendance of witnesses." (Emphasis added.)
R.C. 4905.48 provides, in part:
"With the consent and approval of the public utilities commission:
"(A) Any two or more public utilities furnishing a like service or product and doing business in the same municipal corporation or locality within this state, or any two or more public utilities whose lines intersect or parallel each other within this state, may enter into contracts with each other that will enable them to operate their lines or plants in connection with each other." (Emphasis added.)
On January 13, 1976, the commission caused copies of the complaint to be served upon the three utilities, directing them to satisfy or answer the complaint. Thereafter, additional pleadings and memoranda were filed, including the motions to dismiss of Toledo Edison and C.E.I.
By an entry dated April 13, 1976, the commission dismissed the complaint, finding that "reasonable grounds" were not stated therein. In dismissing the complaint, the commission noted that appellants had failed to allege either of two specific situations which must exist before R.C. 4905.48(A) becomes applicable, as follows: "1) * * * the two public utilities are, in effect, competing for business in essentially the same locality or 2) such utilities' lines intersect or parallel each other." In addition, the commission held that even assuming, arguendo, the above criteria were satisfied "it is still inescapable that agreements relating solely to the planning, design, and installation of nuclear facilities, as do the agreements in question, do not require commission approval * * *."
In their applications for rehearing, appellants argued that it was unreasonable and unlawful for the commission to make its decision without giving all parties the opportunity to be present at a hearing, there to adduce evidence in support of contested issues of fact. At this time, appellants submitted an additional exhibit which allegedly indicated that the transmission lines of Ohio Edison and C.E.I. presently intersect and parallel each other. Appellants also cited P.U.C.O. case No. 33,458, in which the commission had made a formal finding that Ohio Edison and C.E.I. were, in 1965, "doing business, in part, in the same general locality in this state, and at certain places their lines intersect or parallel each other within this state * * *." Appellants contended further that the commission could not properly conclude that the disputed agreements relate solely to "planning, design, and installation of nuclear facilities" as the commission had never obtained copies of these agreements.
In an entry dated June 9, 1976, the applications for rehearing were denied. Thereafter appellants filed notices of appeal to this court. On August 30, 1976, the commission's motion to consolidate the two appeals was allowed, and on September 21, 1976, an application to intervene on the part of the utilities was granted.
Appeals as of right bring the causes to this court for review.
Messrs. Oberholtzer Oberholtzer and Mr. Dale H. Chase, for appellant Coalition for Safe Electric Power.
Ms. Evelyn Stebbins, pro se. Mr. William J. Brown, attorney general, Mr. Charles S. Rawlings, Mr. Marvin I. Resnick and Mr. John W. Rudduck, for appellee.
Messrs. Squire, Sanders Dempsey, Mr. Alan P. Buchmann, Mr. Alan D. Wright, Mr. Victor F. Greenslade, Jr., Mr. Thomas A. Kayuha, Messrs. Fuller, Henry, Hodge Snyder and Mr. Paul M. Smart, for intervening appellees.
"The Public Utilities Commission of Ohio is the representative of the people of the state of Ohio. It is the intermediary between the citizen-consumer on the one side and the public utility on the other. It is a creature of statute, having only such power as the General Assembly has seen fit to confer upon it * * *." Cleveland v. Pub. Util. Comm. (1934), 127 Ohio St. 432, 435-436.
Appellants herein have filed a complaint in writing against three public utilities, pursuant to R.C. 4905.26, alleging that a "service * * * proposed to be rendered, is in violation of law." Upon examination of the complaint and exhibits attached thereto, it is apparent that appellants have raised genuine issues of fact relative to the utilities' compliance with the dictates of R.C. 4905.48(A).
Notably absent from the record of this cause are copies of the disputed agreements between the public utility companies. The utilities have described these agreements as "construction-type contracts," which they contend are exempt from the provisions of R.C. 4905.48. Appellants, on the other hand, claim that the agreements are operational in nature. Alternatively, appellants argue that since all power-generating facilities must be engineered, planned and constructed before utilities are enabled to operate transmission lines, the above statute cannot relate solely to the final operating agreement.
We will not, at this time, decide the merits of the claims raised in the instant complaint. Suffice to say that the commission cannot properly draw factual conclusions from documents which it has not as yet analyzed.
Because the findings of fact are clearly unsupported by the evidence of record, we hold the order of the commission, denying that appellants had established reasonable grounds for their complaint, to be unreasonable and unlawful.
Accordingly, we reverse the commission's order and remand this cause for a hearing on the merits.
Order reversed.
O'NEILL, C.J., HERBERT, W. BROWN, SWEENEY and LOCHER, JJ., concur.
P. BROWN, J., dissents.