McElhinney v. West Virginia Public Service Commission

590 S.E.2d 647, 214 W. Va. 454, 2003 W. Va. LEXIS 131
CourtWest Virginia Supreme Court
DecidedNovember 21, 2003
DocketNo. 31311
StatusPublished

This text of 590 S.E.2d 647 (McElhinney v. West Virginia Public Service Commission) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McElhinney v. West Virginia Public Service Commission, 590 S.E.2d 647, 214 W. Va. 454, 2003 W. Va. LEXIS 131 (W. Va. 2003).

Opinion

PER CURIAM.

This is an appeal by Richard T. McElhin-ney and Catherine A. McElhinney, his wife, from a decision of The West Virginia Public Service Commission refusing to grant them a refund on their gas bill. In refusing to grant the refund, The West Virginia Public Service Commission overruled a recommendation of a hearing examiner that the McElhinneys receive the refund. On appeal, the McElhin-neys claim that The West Virginia Public Service Commission should have adopted the hearing examiner’s recommendation.

I.

FACTS

The appellee, Consumers Gas Utility Company, installed a new gas meter at the MeEl-hinneys’ Spencer, West Virginia, home on November 9, 2001. The company checked the meter on November 12, 2001, and found that there was no problem with it.

Subsequently, in January 2002, the appellant, Richard T. MeElhinney, detected the odor of gas in the vicinity of the meter, and contacted Mathew Bowen, an employee of a hardware store located near the McElhinney home. Mr. Bowen, who had had no professional training with gas meters, routinely hooked up natural gas and propane stoves for the hardware store. In so doing, he was accustomed to checking for gas leaks. When he arrived at the McElhinney home, Mr. Bowen, like Mr. McElhinney, smelled gas in the vicinity of the meter, and after Mr. MeElhinney spread a soapy water (or detergent) solution on the meter and connecting pipe, Mr. Bowen observed bubbles. Mr. Bowen concluded that there was some type of leak at the meter.

Mr. MeElhinney also contacted Consumers Gas Utility Company, the company which had installed the meter. The company sent Benny Carper and David Perkins to the McElhinney house. When they arrived, they observed the bubbling solution on the meter, and according to Mr. MeElhinney, Mr. Carper smeared pipe dope where the bubbles had been observed, and he also tightened the pipe leading to the meter. More soap solution was poured on the area, the fittings were tightened again, and eventually the bubbling stopped.

Subsequently, Mr. McElhinney and his wife, who believed that their gas bills had been too high, filed a complaint with The West Virginia Public Service Commission and requested that the Public Service Commission order that the gas company give them a refund of $140.61 for what they characterized as overcharges occasioned by a gas leak.

The matter was ultimately referred to a hearing examiner who conducted a hearing on July 8, 2002. Mr. and Mrs. McElhinney testified at that hearing as to the events leading to the filing of their complaint, and they introduced pictures of their gas meter with large soapy bubbles at the point where a pipe joined it. They also called as a witness Mathew Bowen, the hardware store employee, who expressed the opinion that there was a gas leak. Benny Carper, the field representative for Consumers Gas Utility Company who investigated the McElhin-neys’ complaint, also testified. Mr. Carper acknowledged that when Mr. McElhinney [456]*456applied a soap solution to the meter and connecting pipes, the solution on the spud bubbled out. He, however, also testified that he did not smell gas in the area and that when he applied the “five-second leak detector solution,” no leak was discovered. Finally, he stated that he and Mr. Perkins had removed the “spud” and re-doped it in order to make the McElhinneys happy.

David Perkins, who accompanied Mr. Carper, testified that he and Mr. Carper applied the “five-second leak detector solution” to the meter and pipe at the McElhinneys’ two or three times on January 31, 2002. The solution did not indicate a leak. He, however, acknowledged that when Mr. McElhinney put his soap or detergent solution on the meter, it bubbled. Mr. Perkins expressed the opinion that there was no gas leak because he, like Mr. Carper, did not smell the odor of gas.

Jerry Watson, Division Manager of Consumers Gas Utility Company, investigated the McElhinneys’ complaint. He reviewed the McElhinneys’ meter readings, and he concluded that compared to other people’s readings, the McElhinneys’ readings were within normal range.

Another witness, an employee of The West Virginia Public Service Commission, Eric de-Gruyter, investigated the meter after the January 2002 visit by Mr. Carper and Mr. Perkins. He testified that he believed that the meter was correctly installed at the time of his examination. He stated that while he was not at the McElhinneys’ residence on January 31, 2002, there was some evidence suggesting that there might have been a leak. He believed that bubbles which appeared in the pictures which were taken of the bubbling solution originated from the two threaded parts of the meter nipple, a typical place for gas leaks to occur. He also indicated that a diluted soap or detergent solution, such as was used by Mr. McElhinney, could be used in place of the “five-second leak detector” solution and that he himself used the detergent solution when testing his own equipment.

After the conclusion of the hearing, the hearing examiner in the case made findings of fact and conclusions of law and prepared a recommended decision. The hearing examiner noted that Mr. Bowen, the hardware store employee, had concluded that there was a gas leak after he had smelled gas in the area of the meter and had observed bubbles when the solution was applied to the meter. The hearing examiner also found that Eric deGruyter, the Public Service Commission employee, noted that the bubbles in the McElhinney photographs were at a place where leaks typically occurred.

The hearing examiner concluded that the evidence established that there was a gas leak, and, as a consequence, recommended that the McElhinneys receive an adjustment on their gas bill. Specifically, the hearing examiner stated: “It is reasonable to grant the McElhinneys’ request for an adjustment to their bill of $140.61, inasmuch as the Com-plaintants have provided evidence that a leak occurred at their residence and they have not lived at the location long enough to establish a pattern of historical gas usage.”

The matter was subsequently considered by The Public Service Commission which stated that the McElhinneys’ gas usage did not exceed 9000 cubic feet during the months in question, which was within the average monthly usage for residential customers in the State of West Virginia, and since the usage was within normal range, the Public Service Commission found that the complaint did not prove the presence of a gas leak by a preponderance of the evidence, and, therefore, rejected the hearing examiner’s recommendation. When asked to reconsider its decision, The Public Service Commission refused to alter its conclusion.

It is from the refusal of The Public Service Commission to grant relief and adopt the recommendation of the hearing examiner that the McElhinneys now appeal.

II.

STANDARD OF REVIEW

In Syllabus Point 5 of Central West Virginia Refuse, Inc. v. Public Service Commission of West Virginia, 190 W.Va. 416, 438 S.E.2d 596 (1993), this Court reiterated the longstanding rule relating to the standard of [457]*457review in public service commission cases. The Court stated:

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Related

Central West Virginia Refuse, Inc. v. Public Service Commission
438 S.E.2d 596 (West Virginia Supreme Court, 1993)
Boggs v. Public Service Commission
174 S.E.2d 331 (West Virginia Supreme Court, 1970)
United Fuel Gas Co. v. Public Service Commission
99 S.E.2d 1 (West Virginia Supreme Court, 1957)

Cite This Page — Counsel Stack

Bluebook (online)
590 S.E.2d 647, 214 W. Va. 454, 2003 W. Va. LEXIS 131, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcelhinney-v-west-virginia-public-service-commission-wva-2003.