Baltimore Gas and Elec. Co. v. Hendricks

• Decision Date: 01 September 1996
• Docket Number: No. 78,78
• Citation: 345 Md. 509,693 A.2d 773
• Parties: BALTIMORE GAS AND ELECTRIC COMPANY v. Michael HENDRICKS et al. ,
• Court: Maryland Court of Appeals

Page 509

345 Md. 509

693 A.2d 773

BALTIMORE GAS AND ELECTRIC COMPANY v. Michael HENDRICKS et al.

No. 78, Sept.Term, 1996.

Court of Appeals of Maryland.

May 7, 1997.

Reconsideration Denied June 10, 1997.

Marc K. Sloane (Paul W. Davis, on brief), Baltimore, for appellant.

Sandra L. Hall, Asst. General Counsel (Bryan G. Moorhouse, General Counsel; Susan S. Miller, Asst. Gen. Counsel, on brief), Donald F. Rogers, Asst. People's Counsel (Michael J. Travieso, People's Counsel, on brief), Baltimore, for appellees.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, RAKER and WILNER, JJ.

WILNER, Judge.

Baltimore Gas and Electric Company (BG & E) complains about an order of the Public Service Commission (PSC) precluding the company from terminating utility service to Michael Hendricks at 4500 Kathland Avenue. The Circuit Court for Baltimore County affirmed the PSC order. We granted certiorari before BG & E's appeal could be heard by the Court of Special Appeals and shall affirm the judgment of the circuit court.

The underlying dispute concerns whether Hendricks is responsible for a $1,166 bill for utility service rendered to the Kathland Avenue property during the period from July 30, 1990 through July 24, 1991. ¹ BG & E sought to terminate service because of the unpaid bill. Hendricks, the current owner and occupant of the property, claimed that he did not order the service for that period and therefore did not owe the money. At issue, essentially, is which party had the burden of proof, what was required to be proved, and what standard of proof was to be applied.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Dispute

Mr. Hendricks maintains that, on July 24, 1991, he telephoned BG & E to request that gas and electric service for 4500 Kathland Avenue be started in his name. The company representative informed him that he would have to pay a deposit of $174 and a $20 application fee. By September 4 1991, both amounts had been paid. Two weeks later--on September 19--BG & E sent employees to read the meters.

As a result of those readings, BG & E sent Hendricks a bill for $1,353. Upon Hendricks's inquiry, BG & E informed him that the bill was for gas and electric service from July 30, 1990 through September 19, 1991. When Hendricks protested that he had not ordered any service prior to July 24, 1991 and had not occupied the property before then, BG & E responded that, according to its records, it had received a telephone call on July 27, 1990 from someone claiming to be Michael Hendricks requesting that the gas and electric service be placed in his name and that, upon that request, service had been continued to the property in that name. Hendricks asserted that he had made no such call and claimed that James W. Dandridge, a former business associate of Hendricks and the former owner of the property, must have made the call, impersonating Hendricks.

Although there are no termination notices in the record before us, testimony was presented at the PSC hearing that BG & E had terminated service to Hendricks on three occasions because of the unpaid bill--in December 1991, in May 1993, and in June 1993. Hendricks said that, on each occasion, he went to the BG & E office, denied his responsibility for the bill, provided BG & E with the documents it requested, and paid reconnection fees. Throughout this time, he paid his current monthly utility bills but made no payment on the alleged arrearage.

BG & E investigated the claim and reviewed the documents provided by Hendricks but nonetheless continued in its belief that he was responsible for the bill. It did, however, agree to continue providing service pending a resolution of the dispute.

B. Administrative Proceedings

Pursuant to its statutory authority to adopt rules and regulations (Maryland Code (1957, 1995 Repl.Vol.), Art. 78, § 64), the PSC has adopted a set of regulations governing the termination of service by public utilities subject to its jurisdiction. They appear in Code of Maryland Regulations (COMAR), title 20, subtitle 31. In relevant part, they make clear that, although a customer is responsible for past due bills for service provided to that customer (COMAR 20.31.01.03D), a utility may not terminate service because of the failure of a previous customer to pay for service to the premises (COMAR 20.31.02.01A).

In subtitle 32 of title 20, the PSC has established a multistep procedure for resolving disputes over utility bills. A "disputed bill" is defined as a bill "which is the subject of a controversy between a customer and a utility regarding [among other things] billing for service for which the customer alleges he [or she] was not responsible." COMAR 20.32.01.02(5); see also COMAR 20.31.01.02B(3). The first step in the dispute resolution process with respect to terminations of service is for the customer to present an inquiry to the utility, which is required to investigate the inquiry. COMAR 20.32.01.03. If the dispute cannot be settled at that level, the customer may submit an inquiry to the PSC, which, in turn, may refer the inquiry to its Consumer Assistance and Public Affairs Section (CAPA). COMAR 20.32.01.04.

Upon such a referral, CAPA may require the customer to submit a more detailed written inquiry, including copies of relevant correspondence and other documentation. After obtaining information from the customer and the utility and reviewing applicable laws, regulations, and tariffs, CAPA attempts to mediate between the parties. COMAR 20.32.01.04F. CAPA may close the inquiry if it finds that the utility has proceeded in accordance with applicable law and its tariff.

If either party is dissatisfied with the CAPA decision, the party may request further review by filing a request with CAPA's Director. If dissatisfied with the action of the Director, a party may file a complaint with the PSC pursuant to Md.Code art. 78, § 77 and COMAR 20.07.03.

Section 77 of article 78 requires the PSC to receive complaints from any person alleging circumstances that would constitute a violation of the article. If the Commission determines that the complaint is "deserving of explanation," it requires one from the utility. In any event, it is directed, in the absence of voluntary satisfaction, to take final action on every complaint. Although the PSC is exempt from the contested case provisions of the Administrative Procedure Act, see Md.Code, State Government article, § 10-203(a)(3)(vi), provisions regarding proceedings before the Commission are set forth in article 78 and in the COMAR regulations.

Proceedings conducted by the Commission on consumer complaints are regarded as contested cases, and, if the Commission determines to proceed on a consumer complaint the utility is entitled to an evidentiary hearing. Art. 78, §§ 79--82. Upon an appeal from a termination proceeding handled by CAPA, the PSC may determine the matter based on the record before CAPA or conduct further proceedings. COMAR 20.07.03.04.

The PSC is authorized by art. 78, § 20, to delegate to a Hearing Examiner the authority to conduct any proceeding within its jurisdiction. At the conclusion of the hearing, the Hearing Examiner files a proposed order, including findings of fact, which becomes final unless appealed to the Commission. If an appeal is taken, the Commission considers the matter on the record made before the Hearing Examiner and issues a final order. A final order of the Commission is declared by statute to be prima facie correct and shall be affirmed upon any petition for judicial review unless clearly shown to be (1) in violation of constitutional provisions, (2) not within the statutory authority or jurisdiction of the Commission, (3) made upon unlawful procedure, (4) arbitrary or capricious, (5) affected by other error of law, or (6) if entered in a contested case, not supported by substantial evidence on the record considered as a whole. Art. 78, § 97.

Mr. Hendricks availed himself of these various procedures. In May, 1993, he filed an informal consumer complaint with the PSC, which referred the complaint to a CAPA Utility Affairs Specialist. That individual, after getting a response from BG & E, found in favor of the company, as did the Director. Hendricks then filed a complaint with the Commission, which delegated the matter to a Hearing Examiner. The only significant factual issue was whether Hendricks had ordered the utility service provided from July 30, 1990 until July 24, 1991. If he did, he was responsible for the charges for that service and, unless the bill was paid, BG & E was entitled to terminate service; if he did not, BG & E was not entitled to terminate service. ²

At the commencement of the hearing, a question arose over who was to proceed first. The Hearing Examiner decided that, as the complainant, Hendricks should proceed first, although he made clear that the order of presentation did not resolve the more important question of who had the burden of proof and persuasion.

Hendricks called as his first witness a BG & E consumer representative, Jerry Johnson. Mr. Johnson stated that BG & E records indicated that, on July 27, 1990, James Dandridge, the then-current occupant of 4500 Kathland Avenue, in whose name service was then being provided, called to terminate the service in his name. Later that day, another call was received from a person claiming to be Michael Hendricks, who asked that service be placed in his name at that address. The caller provided certain personal information, including Hendricks's former address at 581 Laurens Street and his Social Security number. BG & E told the caller that a $20 application fee and a $174 deposit would be required. Neither was ever paid. BG & E took a final reading of the meters and sent Dandridge a final bill, which also was never paid. Nonetheless, the company switched the service to Hendricks's name.

Not only were the fees and the final bill to Dandridge not paid, no payment...