Bronson v. Consolidated Edison Co. of New York, Inc.

• Decision Date: 30 October 1972
• Docket Number: No. 72 Civ. 3087.,72 Civ. 3087.
• Citation: 350 F. Supp. 443
• Parties: Eloise BRONSON, on behalf of herself and all other persons similarly situated, Plaintiff, v. CONSOLIDATED EDISON CO. OF NEW YORK, INC., Defendant.
• Court: U.S. District Court — Southern District of New York

350 F. Supp. 443

Eloise BRONSON, on behalf of herself and all other persons similarly situated, Plaintiff, v. CONSOLIDATED EDISON CO. OF NEW YORK, INC., Defendant.

No. 72 Civ. 3087.

United States District Court, S. D. New York.

October 30, 1972.

Kalman Finkel, New York City, for plaintiff; Michael D. Hampden, New York City, of counsel.

Williams & O'Neill, New York City, for defendant; Joel M. Lasker, New York City, Michael W. Solodar, of counsel.

Louis J. Lefkowitz, Atty. Gen. of State of New York, pro se appearing pursuant to Executive Law, § 71; A. Seth Greenwald, Asst. Atty. Gen., of counsel.

Peter H. Schiff, Albany, N. Y., Counsel to Public Service Commission of State of New York, amicus curiae; Joel Yohalem, Albany, N. Y., David Schechter, New York City, of counsel.

OPINION

TYLER District Judge.

Mrs. Bronson, as a consumer of electricity supplied by Consolidated Edison ("Con Ed") and a "victim" of its termination or "electricity cut-off" procedures, challenges the latter as violative of the Due Process Clause of the 14th Amendment. Specifically, she assails the lack of any mandate, either statutory or regulatory, that a hearing prior to electricity shut-off be held in which the consumer would be afforded opportunity to rebut the company's claims before actually being left in the dark. She has moved for summary judgment pursuant to F.R.Civ.P. 56, and defendant, in effect, has cross-moved for similar relief. Defendant has also put in issue, by way of a motion to dismiss the complaint, plaintiff's claim to a federal forum under 42 U.S.C. § 1983.

THE FACTS

The facts as set forth by plaintiff suggest an Orwellian nightmare of computer control which breaks down through mechanical and programmers' failures and errors. According to Mrs. Bronson, it all began in October, 1969 when she received bills of several times the amount she had been charged previously. Her response was to pay only what she had been accustomed to paying and to attempt, through inquiry and complaint, to set the matter straight.

Her efforts resulted in an investigation of sorts which revealed that plaintiff's landlord, at 312 93rd Street, Brooklyn, had been diverting current through her meter. Despite this discovery, the bills continued at the higher rate, and, on May 11, 1971, Con Ed shut off Mrs. Bronson's current.

After three weeks without electricity, plaintiff went to the Department of Social Services, as she was then receiving welfare assistance, and on June 18 obtained and delivered to Con Ed an emergency two-party check for the $147.81 the utility was then demanding. Notwithstanding, the subsequent bills sent to Mrs. Bronson continued to demand payment of the "arrears". Service, which had been restored on June 14 at the request of the Legal Aid Society, was again expressly threatened with termination. Indeed, in mid-June, 1972, two Con Ed representatives actually visited Mrs. Bronson at her home to demand payment of billed arrears then claimed to be $175.

Con Ed in its papers here purports to contest the fact that an investigation ever took place. It asserts that it can find no record of any company employee ever going to 312 93rd Street to investigate Mrs. Bronson's allegations. But, in apparent flat contradiction of the assertion, Con Ed has furnished as an exhibit a letter it claims to have sent to Mrs. Bronson stating:

As a result of your recent inquiry we sent a representative to verify the information on which the bill you questioned was computed because there was a possibility that it might have been based on an incorrect meter reading. (Exhibit O, Affidavit of William Sixsmith).

To buttress this self-contradiction, in answer to Mrs. Bronson's assertion that no investigation was made until sometime in 1971 (Para. 23, Plaintiff's Complaint), Con Ed has also submitted a photostat of a letter dated April 30, 1970, purportedly received from Eloise Bronson, mentioning the investigation and its findings (Exhibit E, Affidavit of William Sixsmith). The company then inexplicably adds that ". . . there is no record indicating that Mrs. Bronson ever informed the company that the landlord at 312 93rd Street had his electrical wiring attached to the meter assigned to Mrs. Bronson." (Sixsmith Affidavit, at 7.)

Con Ed in fact claims "no record" of many of the aspects of this case. No record of Mrs. Bronson requesting service at her 93rd Street address can be found, it is claimed, in spite of the admission that a field representative had visited Mrs. Bronson on December 19, 1969 and had been told by her of her occupancy there, and that the utility had then set up an account in her name. (Id. at 2). Likewise, "no report" of any notice of Mrs. Bronson's change of address from her former residence at 9225 5th Avenue, Brooklyn to 93rd Street allegedly has been found.

However curious this all may appear, it is mild stuff indeed when considered against the story of what happened (or did not happen) to the check with which Mrs. Bronson attempted to finally end her ordeal. Defendant first concedes that the check was delivered to its Pearl Street office, credited to Mrs. Bronson's account, and then sent to the Manufacturer's Hanover Bank. But, with remarkable self-satisfaction under the circumstances, Con Ed then asserts: (1) the check was lost at the bank; (2) "the bank notified the company that they had not received the check"; and (3) the company, "by an unknown employee", then re-entered the $147.80 deficit on Mrs. Bronson's account. (Sixsmith Affidavit, at 7).

STATE ACTION

Small wonder, therefore, that Mrs. Bronson is now seeking relief from a court of record. The question to be asked at this point, however, is whether she may do so in a federal district court.

Plaintiff asserts that federal jurisdiction obtains under Title 42 U.S.C. § 1983, which, to be successfully invoked, requires a finding that "state action" be present. On the facts of this case, such a finding cannot be avoided.

In the relevant legal sense, Con Ed is by no stretch of the imagination a purely private enterprise. The State of New York, by an extensive statutory and regulatory scheme, has circumscribed almost every aspect of the utility's activities, and has, by the same means, granted it powers not available to a typical private concern.

Under the Public Service Law of New York, the Public Service Commission ("PSC") is given general supervisory powers over gas and electric corporations such as Con Ed (§ 66), grants, denies or revokes their franchises (§ 68), approves rates (§ 65), and has pervasive power to investigate and inspect (§§ 66, 67). Con Ed's rules and regulations must be filed with and approved by the Commission to be effective (§ 66). PSC approval is needed as well for the utility's issuance of stocks and bonds, proposed mergers, re-organization and transfer or lease of its franchise (P.S.L. §§ 69, 69-a).

Con Ed is empowered, subject again to PSC approval, to condemn private property (Transportation Corporation Law, Art. 2, § 11(3-b) ), require customer deposits (Id. § 13), and enter upon private property under specified conditions (Id. § 14). It is also directly authorized by statute to do what is challenged here by Mrs. Bronson, terminate service to a customer for non-payment of charges on 5 days' notice. (Id. § 15).

Where the state has so involved itself with a private concern, the concern can be said to act for the state. Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Farmer v. Moses, 232 F. Supp. 154 (S.D.N.Y.1964). This involvement, both in breadth and purpose, indicates that the state has franchised Con Ed to carry on what is clearly a quasi-public function. Thus, the utility is licensed to and does act as an agent of the state. Hampton v. City of Jacksonville, 304 F.2d 320 (5th Cir. 1962) cert. den. sub nom. Ghiota v. Hampton, 371 U.S. 911, 83 S.Ct. 256, 9 L.Ed.2d 170 (1962), Kerr v. Enoch Pratt Free Library of Baltimore City, 149 F.2d 212 (4th Cir.) cert. den. 326 U.S. 721, 66 S. Ct. 26, 90 L.Ed. 427 (1945). Such has been the conclusion of the majority of federal courts that have been called upon to pass on this question in the context of public utility service termination practices,¹ and is the conclusion of this court as well.

Defendant's motion, pursuant to F.R. Civ.P. 12(b)(1), to dismiss for lack of federal jurisdiction, therefore, is denied.

It bears mention in this regard, however, that what is actually challenged herein as state action might be more correctly characterized as state inaction. The comprehensive regulatory scheme under which Con Ed operates, as noted above, makes specific provision for service termination on customer default. Transportation Corporations Law § 15, in relevant part and as far as it goes, is the only express authority for termination of utilities and the manner in which such may be effected:

§ 15. Refusal or neglect to pay rent

1. If any person supplied with gas or electric light by any such corporation shall neglect or refuse to pay the rent or remuneration due for the same or for the wires, pipes or fittings let by the corporation, for supplying or using such gas or electric light or for ascertaining the quantity consumed or used as required by his contract with the corporation, or shall refuse or neglect, after being required so to do, to make the deposit required, such corporation may discontinue the supply of gas or electric light to the premises of such person; and the officers, agents or workmen of such corporation may enter into or upon such premises between the hours of eight o'clock in the forenoon and six o'clock in the afternoon, and separate and carry away any meter, pipe, fittings, wires or other property of such corporation, and may disconnect any meter, pipe, fittings, wires or other works whether the property of the corporation or not, from the mains, pipes or wires of the corporation. But the supply of gas or electric light shall

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