Milkie v. Pennsylvania Public Utility Commission

768 A.2d 1217, 2001 Pa. Commw. LEXIS 112
CourtCommonwealth Court of Pennsylvania
DecidedFebruary 23, 2001
StatusPublished
Cited by11 cases

This text of 768 A.2d 1217 (Milkie v. Pennsylvania Public Utility Commission) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Milkie v. Pennsylvania Public Utility Commission, 768 A.2d 1217, 2001 Pa. Commw. LEXIS 112 (Pa. Ct. App. 2001).

Opinion

LEADBETTER, Judge.

Robert H. Milkie appeals from an order of the Public Utility Commission (PUC) that dismissed Milkie’s complaint against Pennsylvania Power & Light (PP & L). At issue is the proper application of a doctrine known as the “Waldron rule,” under which a complainant may establish a .prima facie case of overbilling by showing that the disputed bill was abnormally high when compared to prior bills, although his usage pattern had not changed. Waldron v. Philadelphia Elec. Co., 54 Pa. PUC 98, 1980 WL 140964 (1980).

Milkie filed a formal complaint with the PUC on September 26, 1996. He claimed that he had been overcharged for electric usage at his vacation home from 1986 until early in 1996, when his bills dropped precipitously. Following a telephonic hearing at which both sides presented evidence, an administrative law judge recommended that Milkie’s bills for 1993, 1994 and 1995 be recalculated based upon average usage during 1996 ■ and 1997.1 PP & L filed exceptions. The Commission reversed, concluding that Milkie failed to meet his burden of proof. Milkie now appeals to this court.

Milkie, an architect, testified that he designed the Pocono Lake vacation home to be energy efficient. He, his wife and two teenaged children, (whose primary residence is in Staten Island, New York) use the home “maybe once a month, sometimes once in two months,” and for about one week during the Christmas holiday. When the house was empty, he set the thermostat at 40-45 degrees Fahrenheit and shut the water pump off and lights off, except for two automatic outside lights. The family’s usage of the property had been “pretty consistent” in the eleven years they owned it. After he compared his bills with those received by neighbors living year-round in the area, in 1988 or 1989 Milkie notified PP & L that he suspected overbilling. He complained again in around 1992 and in 1996. Each time PP & L checked the meter and found it to be accurate. In February of 1996, he threatened to complain to the PUC and thereafter his bills dropped “probably 200 percent.” Milkie presented his calculations as to his average payments (based upon his checking account records) during 1993, 1994,1995 [disputed period] and after February of 1996 [undisputed period].

PP & L presented the testimony of John Janofsky, an employee whose duties included the investigation of billing complaints. He presented PP & L’s usage and billing records for the Milkie property from 1994-97. Although these figures showed a far less dramatic difference between the average billings during the [1219]*1219disputed and undisputed periods, they nonetheless verified a reduction in metered usage during 1996 and 1997.2 Ja-nofsky also testified that, based upon the billings, the bulk of electric usage by the Milkie family was heat-related, and explained the various factors which can affect heat loss and fluctuations in power usage. He had inspected the house in March of 1996 and in December of 1997. The Milkies were not in residence and a neighbor let him in. He testified to his observations and measurements of the house itself and of the appliances on the premises which would draw electric power when in use. On the December visit, he measured the temperature inside the house at 50 degrees although the thermostats were set at 45 degrees. He also found the fireplace flue to be open. In November of 1997, he checked the Milk-ies’ electric meter and found it to be 99.8% accurate. He also identified a document (admitted as P-8) sent by the Bureau of Consumer Services of the Commission dated March 13, 1996, which stated “CO HAS BEEN ONSITE TO CHK PROPERTY METER CHKED OUT OK FOUND NO LEAKS CO CAN’T ACCOUNT FOR HIGH KW YS LOW USAGE.”3

Finally, in lieu of further testimony, Milkie stipulated “that the actual usage was less than the potential [energy use at the home]” and that “the heat loss related usage at this home, assuming the temperature inside the home is 50 degrees and the temperature outside the home is minus 10 would be 20,356 KWH for the heating season.”4

On appeal, Milkie claims that the administrative law judge properly found that he had established a prima facie case of overbilling and that PP & L had failed to come forward with “co-equal” evidence, thus that the Commission erred in dismissing his complaint. The heart of this dispute, at all levels, reflects confusion about the ‘Waldron rule” and the role it plays in the PUC’s adjudication of an overbilling claim. While the rule is often explained by stating that the ratepayer must establish certain specific elements5 in order to make [1220]*1220out a prima, facie case of overbilling by a utility company, we believe this view is too restrictive. Rather, the controlling principle is that even where the utility can present evidence that it has tested the customer’s meter and found it to be accurate, the customer may, nonetheless, prove his case by circumstantial evidence which would support a finding that the metered usage exceeded the actual usage. Thus, as our Supreme Court has explained, the rule operates as a device by which the complainant is protected from dismissal because of his inability to marshal direct proof that his meter had malfunctioned. Burleson v. Pennsylvania Pub. Util. Comm’n, 501 Pa. 433, 435-36, 461 A.2d 1234, 1235 (1983). Any circumstantial evidence which meets this standard will establish a prima facie case.6

Once it is determined that the complainant has made out his prima facie case, the burden of going forward shifts to the utility, but the ultimate burden of persuasion remains with the complainant. The Commission7 must measure the weight and credibility of all the evidence, and simply because the ratepayer has presented a prima facie case does not obligate the Commission to credit this evidence or to give it any special weight. If the utility presents evidence found to be of co-equal (or greater) weight with that of the complainant, the complainant will not have met his burden of proof. At this stage, the Waldron doctrine provides “that the mere proof by the utility that its power measuring devices were accurate is no longer the sole determinant as to whether there is a basis to a complaint of overbilling.” Id. at 436, 461 A.2d at 1236 [emphasis supplied]. Finally, where the Commission has dismissed the complaint because the customer has failed to sustain his burden of persuasion (generally a fact question), rather than because the customer failed to present a prima facie case as a matter of law, the Waldron rule is irrelevant on appeal. Id. at 436, 461 A.2d at 1236.

On appeal, Milkie seeks to have us review whether he presented a prima facie case under Waldron, while PP & L argues that Waldron is of no consequence at this point and the proper focus of our review is whether the Commission’s decision is supported by substantial evidence. That the parties view the issue before us in such a vastly different manner is explained by the fact that the Commission has employed language in its decision which is at variance with the nature of its analysis. Although opining that Milkie failed to establish a prima facie case, it is clear that the Commission reached its decision by reviewing and evaluating the weight and probative value of all the evidence.

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Bluebook (online)
768 A.2d 1217, 2001 Pa. Commw. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/milkie-v-pennsylvania-public-utility-commission-pacommwct-2001.