Opinion
No. 84-1543
Decided June 25, 1986.
Claim of overcharge for gas consumed at residence — Factual finding of commission will not be disturbed, when.
APPEAL from the Public Utilities Commission of Ohio.
On December 6, 1983, Michael Thomas, appellant, filed a complaint with the Public Utilities Commission of Ohio ("PUCO"), appellee. He alleged he had been overcharged by Columbia Gas of Ohio, intervening appellee, for gas service at his home during the months of March, April, and May 1983. Columbia Gas denied Thomas' allegations and a hearing was held on March 9, 1984. Thomas represented himself and he and his daughter, Janice, who resides with him, testified on his behalf. Columbia Gas presented four witnesses, three of whom were service representatives and the fourth being a customer accounting clerk. The service representatives had been summoned to the Thomas residence upon complaints of excessive billings.
The first service representative, Thomas Wilson, testified that he visited the Thomas residence on April 28, 1982, and found that the thermostat on the furnace was set at 90 degrees, and that doors and windows were open. Thomas denied that Wilson had ever been to the home.
Gloria Nelson, the second service representative, stated she went to Thomas' house on February 11, 1983. She said that she examined the gas meter, it was working properly, the house was "so warm inside," and the front door was left open. Thomas disputed Nelson's testimony.
Serviceman William Rogers said he called at the Thomas residence on April 20, 1983, found the meter to be "undercalculated," but the "[r]est of the reading was okay." Thomas accused the witness of lying about visiting his home and declared that he had "never seen that man before."
Evidence also indicated that the north wall of the Thomas home had holes in it resulting from a fire in 1983.
Judy Reber, the customer accounting clerk, stated that Thomas' final bill showed a balance of $1,013.90. She reported that periodic payments had been made on the Thomas account from January 1983, but that the account had not been fully paid at any time since then.
Thomas' gas service was eventually terminated. At the time of the termination, May 2, 1983, the service representative gave Thomas a notice which stated that he owed $816.04. Thomas, at the hearing, protested the discrepancy between this amount and that shown on his final bill of $1,013.90. The accounting clerk testified that the $197.86 difference reflected the amount of Thomas' current bill which had not yet become due.
Janice Thomas, who, with her son, lives with appellant, testified that "* * * the furnace was turned [up] as high as it would go 90 percent to 95 percent of the time and the kitchen ovens' [ sic] top and bottom and all four burners were on approximately 80 percent of the time just to keep the house warm enough for my son because we have an old house and air just comes in around the windows." She said, however, that during the November 1982 to February 1983 period, "the highest gas bill we had was $181.00." Thomas himself admitted that the thermostat was often set at 90 degrees.
In addition to his other complaints, Thomas also testified that his gas service was wrongfully terminated. He said he had been notified that it would end on May 17, 1983, but it was instead shut off on May 2, 1983. He told the commission's attorney-examiner that he did not have time to make arrangements to pay the bill because his service was terminated two weeks too early.
Thomas' evidence consisted primarily of protests about gas company bills that were "too high," and copies of those bills. In light of the evidence, the attorney-examiner for the PUCO concluded:
"* * * Clearly Mr. Thomas presented mere allegations that his bills were inaccurate or too high. No evidence of record can be found to substantiate these claims. Columbia witnesses demonstrated that three separate service calls to complainant's residence were made to verify Mr. Thomas' meter during the period in question, and no problems or malfunctions were discovered. In addition, Mr. Thomas' own testimony that he kept his thermostat at 85 degrees, that he occasionally left his inside front door open during winter months * * * offer little support for his complaint that his bills were too high. Based upon the foregoing, the attorney examiner concludes that Mr. Thomas failed to meet his burden of proof that Columbia provided inadequate service."
The commission, in its opinion, made similar findings, and additionally included the following:
"* * * [T]he difference between the amount owed for gas service on the termination of service date and the amount owed on the final billing date was adequately explained by company witness Reber. The Commission finds that the evidence of record establishes that complainant's bills for gas service were proper and accurate.
"The Commission further finds that the May 2, 1983 termination of service was lawful and proper. Complainant's evidence which indicated a termination date of May 17, 1983, dealt only with the last notice of termination and conveniently ignored the earlier termination of service notices. Complainant's account had been in arrears continuously for one year prior to termination of service, and numerous termination of service notices had been sent to complainant. There is no evidence in the record from which the Commission could conclude that service was improperly terminated."
The commission thereupon dismissed Thomas' complaint. An appeal from that decision brings the dispute here for review.
Michael Thomas, pro se. Anthony J. Celebrezze, Jr., attorney general, Robert S. Tongren and Amy S. Katzman, for appellee.
Thomas E. Morgan, James L. Fullin and Stephen B. Seiple, for intervening appellee.
"Review of orders of the Public Utilities Commission on appeal is limited to a consideration of whether the order is unreasonable or unlawful, and, on questions of fact, this court will not substitute its judgment for that of the commission unless it appears from the record that the finding and order were manifestly against the weight of the evidence." Cremean v. Pub. Util. Comm. (1976), 48 Ohio St.2d 163 [2 O.O.3d 342], paragraph one of the syllabus; see, also, Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1975), 42 Ohio St.2d 403 [71 O.O.2d 393], paragraphs four and eight of the syllabus; Akron v. Pub. Util. Comm. (1966), 5 Ohio St.2d 237 [34 O.O.2d 467]; Lorain-Amherst Transit, Inc. v. Pub. Util. Comm. (1947), 147 Ohio St. 376 [34 O.O. 307]. "The action of an administrative officer or board within the limits of the jurisdiction conferred by law is presumed, in the absence of proof to the contrary, to be valid and to have been done in good faith and in the exercise of sound judgment." Wheeling Steel Corp. v. Evatt (1944), 143 Ohio St. 71 [28 O.O. 21], paragraph seven of the syllabus. Consequently, where a decision of the Public Utilities Commission is under attack, "[t]he burden of proof rests upon the complainant." Grossman v. Pub. Util. Comm. (1966), 5 Ohio St.2d 189, 190 [34 O.O.2d 347]; Consumers' Counsel v. Pub. Util. Comm. (1985), 18 Ohio St.3d 264, 265.
Although Thomas contends the service representatives from Columbia Gas lied in their testimony, he declined to cross-examine them in any way to test their credibility. In his brief before this court, Thomas states: "* * * I do not believe that Columbia Gas makes mistakes on everyones [ sic] bills to this extreme * * *. * * * [T]he lies told by the Columbia Gas witnesses at the P.U.C.O. hearing certainly suggests [ sic] at the very least bias * * *." There is no evidence in the record to substantiate these conclusions.
Thomas attempts to rely on two non-evidentiary Local Climatological Data reports from the National Oceanic and Atmospheric Administration which, apparently, are intended to show that the outside temperature was not cold enough to warrant the consumption of the amount of gas for which he had been billed. We do not consider the relevance of these reports, however, because they were not a part of the record before the PUCO. In an appeal to this court from an order of the Public Utilities Commission, new evidence is not adduced, but this court considers the law and facts upon the record made before the commission. East Ohio Gas Co. v. Pub. Util. Comm. (1938), 133 Ohio St. 212, 217 [10 O.O. 282]. Nevertheless, if there were holes in one wall of Thomas' house, and doors and windows had been left open, the outside temperature would have little bearing on the consumption of gas. One can expect to use a lot of gas when one tries to heat all outdoors. Moreover, Thomas and his daughter admitted that their thermostat was frequently set at 90 degrees and that "* * * the furnace was turned [up] as high as it would go 90 percent to 95 percent of the time * * *."
Thomas presented no credible evidence capable of overcoming the presumption of regularity in the proceedings before the PUCO. In view of the state of the record, we cannot say that the decision of the commission is contrary to the weight of the evidence. Consequently, we find that the commission's order is neither unreasonable nor unlawful, and it is affirmed.
Order affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.