Opinion
DOCKET NO. A-2404-13T4
03-13-2015
PETER TRIESTMAN, Petitioner-Appellant, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Respondent-Respondent.
Kevin Crawford Orr argued the cause for appellant (Law Offices of Kevin Crawford Orr, attorneys; Mr. Orr, of counsel and on the brief). Alexander C. Stern argued the cause for respondent Public Service Electric and Gas Company. T. David Wand, Deputy Attorney General, argued the cause for respondent New Jersey Board of Public Utilities (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jennifer S. Hsia, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Nugent. On appeal from the New Jersey Board of Public Utilities, Docket No. 03126-13/05419-12. Kevin Crawford Orr argued the cause for appellant (Law Offices of Kevin Crawford Orr, attorneys; Mr. Orr, of counsel and on the brief). Alexander C. Stern argued the cause for respondent Public Service Electric and Gas Company. T. David Wand, Deputy Attorney General, argued the cause for respondent New Jersey Board of Public Utilities (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Jennifer S. Hsia, Deputy Attorney General, on the brief). PER CURIAM
In this appeal, we consider whether — in reviewing an administrative law judge's findings at the conclusion of a remand proceeding concerning appellant Peter Triestman's claim that electric and gas service was diverted from his premises — the Board of Public Utilities properly determined Triestman's tenancy in a four-story commercial building in Newark was a commercial tenancy. Because the ALJ failed to make it clear to Triestman that the nature of his tenancy — originally found by the ALJ and the BPU to be residential — would be revisited in her subsequent findings, we remand so that Triestman may have a full and fair opportunity to offer evidence on that question.
Triestman instituted these proceedings when he complained to the BPU that his electric and gas service was being diverted and that he believed he was overbilled by Public Service Electric and Gas Company between June 2009 and February 2012. Triestman also asserted that PSE&G improperly refused to classify his account as residential for a substantial portion of the same period. In responding, PSE&G performed a field investigation in February 2011 and concluded Triestman was utilizing a 4,000 square foot open loft area for both commercial and residential purposes.
The dispute was transmitted as a contested case to the Office of Administrative Law, which assigned an administrative law judge to the matter. At a hearing in July 2012, Triestman testified he and his family resided in the premises, and PSE&G provided testimony that the premises appeared to have been used for both residential and commercial purposes. The ALJ heard extensive testimony concerning whether a diversion had occurred and ultimately concluded there was a diversion "because one of his breakers provided service to the lights in the stairwell of the building" that were "outside of [Triestman's] premises," and also that Triestman was "incorrectly billed at commercial rates for gas until February 2011 and incorrectly billed at commercial electric rates until December 2011."
Triestman filed exceptions and, by way of a thorough written decision, the BPU determined that the ALJ's decision "about [Triestman's] diversion of electric service regarding the hallway lights, [Triestman's] right to a revised electric bill, and his request for residential rates are reasonable and fully supported by the record." The BPU, however, also determined that the ALJ
did not provide sufficient factual findings as to [Triestman's] alleged diversion of gas service. [Triestman] alleged PSE&G continued to bill him for gas usage after he shut off the gas from the main valve in his apartment and shut off [] all gas appliances and gas heaters. . . . [Triestman] also alleged the pipes in his fourth floor apartment froze in the winter while the water on the third floor continued to run. . . . In response,
Mr. Sequeira testified there was no diversion because [Triestman's] gas meter stopped when he shut off [Triestman's] heat during his investigation in December 2011Consequently, the BPU remanded for reconsideration of the ALJ's "conc1usions regarding PSE&G's compliance with N.J.A.C. 14:3-7.8, [Triestman's] alleged further diversion of electric service as well as the alleged diversion of gas service, and [Triestman's] right to a revised gas bill."
. . . .
Unlike [the initial] decision regarding electric service, [the ALJ] did not make any findings of fact or conclusions to resolve this dispute about diverted gas service. As explained above, the [ALJ] found probative Mr. Sequeria's report and [Triestman's] testimony, concluded there was diversion of electric service, and ordered PSE&G to rebill [Triestman's] electric service. . . . There were no similar findings of fact or conclusions about diversion of gas service which would resolve the dispute between [this] testimony. The [i]nitial [d]ecision contains only [the ALJ's] order directing PSE&G to rebill [Triestman's] gas service.
Following this direction, the ALJ heard additional testimony over two days. The proofs elicited at that time further illuminated the nature of the tenancy, and the ALJ ultimately concluded there was no diversion of service other than the hall lights to which the ALJ had referred in the earlier decision. The ALJ also concluded that Triestman "was not entitled to a diversion investigation because he is not a tenant-customer in accordance with N.J.A.C. 14:3-7.8(a)," which defines a "tenant-customer" as "a residential customer of record at the time of the complaint who rents a dwelling unit in a multi-family building or owns a condominium." Triestman appealed to the BPU but filed no written exceptions.
In its thorough written decision, the BPU adopted the ALJ's findings and modified its earlier ruling that there was a diversion in light of the new finding that Triestman "is a commercial tenant"; the BPU directed PSE&G to bill Triestman "on the commercial tariff going forward."
Triestman appeals the BPU's final decision, arguing:
I. THE AGENCY ERRED IN REVISITING ITS FIRST ORDER FINDING PETITIONER WAS A "TENANT-CUSTOMER" ENTITLED TO CONSUMER PROTECTION UNDER ITS DIVERSION REGULATION, AND IN DISREGARDING THE TWO REASONS FOR THE LIMITED REMAND, (1) REQUIRING THE PUBLIC UTILITY TO PROVE IT COMPLIED WITH ITS DUTY TO INVESTIGATE DIVERSION; (2) ADDITIONAL FACTFINDING REGARDING WHETHER (A) ADDITIONAL ELECTRIC WAS BEING DIVERTED TO A/C UNITS USED BY OTHER TENANTS AND (B) GAS WAS BEING USED TO HEAT THE THIRD FLOOR.Because we find substance in Triestman's arguments concerning the scope of the remand proceedings, we do not yet reach the merits of these issues and, instead, remand for additional proceedings.
II. PETITIONER WAS A RESIDENTIAL TENANT PROTECTED BY THE STATE OF NEW JERSEY, BOARD OF PUBLIC UTILITIES, DIVERSION OF SERVICES RULE, N.J.A.C. 14:3-7.8.
A. The Adoption and Purpose of the Diversion of Service Rule.
B. Rule Construction.
Triestman has argued the ALJ erred in failing to comply with the mandate expressed by the BPU when it remanded the matter to the ALJ. He is correct that the issues as limited by the remand did not expressly encompass the dispute about the nature of the tenancy, although it is arguable that in complying with the remand order the ALJ may have found it necessary to explore the commercial/residential dispute. The problem, however, is with the lack of clarity regarding the remand proceedings.
Although PSE&G was permitted to elicit testimony that the tenancy was commercial, the ALJ expressed limitations on the decision required by the BPU's remand order. That is, during the second and last day of the remand hearing, Triestman questioned the landlord about how the tenancy had been characterized by the landlord in a pending eviction action. When the landlord responded that he could not answer the question but perhaps his attorney could, Triestman asked the ALJ whether he could "call [the landlord's] attorney to the stand to testify." The following then transpired:
PSE&G's counsel was permitted to ask a PSE&G representative about the nature of the tenancy:
Q. [A]s you sit here today based on your discussions and additional investigation, are we dealing with a residential or a commercial premise?
A. Commercial.
Q. Are we dealing with a residential premise?
A. No, we're not.
The attorney was present in the courtroom.
THE COURT: What would that have to do with the diversion suit? That's what we are here about.Triestman was certainly entitled to anticipate from the ALJ's comments that the ALJ would not further examine or rule upon — and he would have no further need to elicit testimony or other evidence about — whether his tenancy was commercial or residential.
MR. TRIESTMAN: If the tenancy is commercial as opposed to residential, there are different rules.
THE COURT: But that's not an issue — I don't believe when the case [was] remand[ed] it was to determine whether it was commercial or residential . . . . I believe it was the law in this case that you are a residential tenant, if I'm not mistaken.
MR. TRIESTMAN: Correct. Okay, so then I don't need to pursue that. That's fine.
A "trial court is under a peremptory duty to obey in the particular case the mandate of the appellate court precisely as it is written." Flanigan v. McFeely, 20 N.J. 414, 420 (1956). It does not appear, however, that this principle applies as rigorously in administrative proceedings. See N.J.A.C. 1:1-18.7. Nevertheless, due process principles do apply, and Triestman was entitled to know the scope of the issues to be decided. See In re Proposed Quest Acad. Charter Sch., 216 N.J. 370, 384-85 (2013). Although the BPU defined the issues for the ALJ, her decision reached into other areas that, as the colloquy we have quoted suggested, would not be further considered. We conclude that the ALJ mistakenly limited Triestman's presentation and that the only proper remedy is a remand for further consideration of the issue after Triestman is provided with a fair opportunity to offer additional evidence on the commercial/residential dispute.
This rule states that an agency "may enter an order remanding a contested case . . . for further action on issues or arguments not previously raised or incompletely considered" and the order "shall specifically state the reason and necessity for the remand and the issues or arguments to be considered." N.J.A.C. 1:1-18-7(a). This rule contains none of the language found in the decisional law concerning a lower court's obligation to adhere strictly to an appellate court's mandate.
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In remanding, we do not mean to suggest the ALJ was not permitted to consider the nature of the tenancy, only that Triestman was entitled to notice that the issue would be revisited. Because Triestman appears not to have been given a full and fair opportunity to offer evidence on the commercial/residential question, we find it necessary to remand for that opportunity.
The matter is remanded to the BPU, which is directed to forthwith remand the matter to the ALJ so that Triestman may offer any additional evidence and arguments he may wish to assert about whether the tenancy was residential or commercial. These proceedings must be completed within forty-five days.
Remanded. We retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION