Office of Consumers' Counsel v. Public Utilities Commission

575 N.E.2d 157, 61 Ohio St. 3d 396, 1991 Ohio LEXIS 1958

• Court: Ohio Supreme Court
• Decided: August 14, 1991
• Docket: Nos. 90-1539 and 90-2116
• Status: Published

Opinions

Holmes, J.

Appellant OCC argues that the Commission erred by raising sua sponte the issue of whether the “condominium clause” was discriminatory. In this regard, OCC argues that when the Commission determined that the condominium clause was unjustly discriminatory, “it chose to forge off in a direction not even hinted at by the parties * * *,” and did so without notice to the parties, and that such action by the Commission inherently violated the due process rights of the consumers.

The OCC also argues that the Commission erred as a matter of law in concluding that the condominium clause had a discriminatory impact upon other customers of Ohio Edison and that the evidence does not support such a finding.

We find that the Commission did not err in the application of the appropriate law, and was reasonable in making the determination that it made under all the circumstances of the matter presented to it.

Pursuant to R.C. 4905.26, the Commission may find a rate or tariff provision unlawful, unjust, unreasonable or discriminatory, whether that issue is raised by the complaint or sua sponte by the Commission.

R.C. 4905.26 provides in pertinent part:

“Upon complaint in writing against any public utility by any person * * *, or upon the initiative or complaint of the public utilities commission, that any rate * * * is in any respect unjust, unreasonable, unjustly discriminatory, unjustly preferential, or in violation of law, * * * 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 jurisdiction over the totality of utility rates pursuant to R.C. Chapter 4905, and specifically the above quoted section, is sufficiently broad for the Commission to have sua sponte addressed the question of the discriminatory nature of the condominium clause. However, here the appellant OCC itself had placed the issue before the Commission. Ohio Edison points out that in paragraph ten of the complaint OCC alleged that “OE’s [Ohio Edison’s] practice of billing complainants at commercial rates for service to common areas of the condominium complex is unjust, unreasonable, discriminatory and in violation of law and OE’s residential service tariff.” Although the alleged discrimination pertained to the common areas and security lighting for these condominiums, the allegation reasonably encompassed any discrimination that was inherent in the condominium clause, whether against these or other customers of Ohio Edison similarly situated.

As noted by Ohio Edison, the OCC had advance notice that the Commission would be reviewing the question of any discrimination in the condominium clause, and OCC was allowed the opportunity to introduce evidence of comparisons between the usage at condominiums and single family houses. The Commission, having all the evidence before it, concluded that the condominium clause of Ohio Edison’s tariff affected the rights, and the rates, of the company’s non-condominium owner customers.

Based upon all the facts before it, the Commission determined that the condominium clause was discriminatory.

In that we have decided the substantive issue of the lawfulness and reasonableness of the Commission’s order regarding the condominium clause, the procedural issue presented within case No. 90-2116 is moot. However, we will proceed to make a few pertinent points relative to these procedural issues. First, OCC sought to stay the implementation of the amendment of the rates resulting from the Commission’s prior order to delete the condominium clause from Ohio Edison’s tariff. However, it did not follow the statutory procedure of asking the Supreme Court to stay an order of the Commission, including posting a bond. See R.C. 4903.16. Instead, OCC moved the Commission itself to stay consideration of the amendment application. The Commission denied that motion, and OCC appealed to this court.

R.C. 4903.16 provides for the procedure that must be followed when seeking a stay of a final order of the Commission. Specifically, R.C. 4903.16 provides in pertinent part:

“A proceeding to reverse, vacate, or modify a final order rendered by the public utilities commission does not stay execution of such order unless the supreme court or a judge thereof in vacation, on application and three days’ notice to the commission, allows such stay, in which event the appellant shall execute an undertaking, payable to the state in such a sum as the supreme court prescribes, with surety to the satisfaction of the clerk of the supreme court, conditioned for the prompt payment by the appellant of all damages caused by the delay in the enforcement of the order complained of * * *.”

In Columbus v. Pub. Util. Comm. (1959), 170 Ohio St. 105, 10 O.O.2d 4, 163 N.E.2d 167, it was held by this court that the statutory procedures control the process for appealing final Commission orders. In its interpretation of this statute, in Columbus, this court concluded that “any stay of an order of the commission is dependent on the execution of an undertaking by the appellant * * (Emphasis deleted.) Id. at 109, 10 O.O.2d at 7, 163 N.E.2d at 170.

The order in the condominium clause case, Supreme Court case No. 90-1539, established the rates that Ohio Edison was authorized to charge. That was a final Commission order. If appellant wished to stay the collection of the rates authorized by that order pending its appeal thereof, it should have moved to stay the order. Additionally, in that R.C. 4903.16 is the statute dealing with staying a final Commission order, appellant should have complied with all of its requirements. Appellant did not apply to this court for a stay of the final order eliminating the condominium clause, nor did it post a bond. Therefore, based upon R.C. 4903.16, and this court’s interpretation thereof, appellant would not be entitled to the relief it seeks in Supreme Court case No. 90-2116.

Based upon all the foregoing, we hereby affirm the Commission’s opinion and order in case No. 90-1539 and dismiss sua sponte as moot the appeal in case No. 90-2116.

Judgment accordingly.

Moyer, C.J., Sweeney, Douglas and Wright, JJ., concur.

H. Brown and Resnick, JJ., dissent.