Montgomery County Bd. of Com'rs v. Public Utilities Com'n of Ohio, s. 86-26

• Decision Date: 30 December 1986
• Docket Number: 86-651,Nos. 86-26,s. 86-26
• Citation: 503 N.E.2d 167,28 Ohio St.3d 171
• Parties: , 28 O.B.R. 262 MONTGOMERY COUNTY BOARD OF COMMISSIONERS, Appellant, v. PUBLIC UTILITIES COMMISSION OF OHIO et al., Appellees. (Two cases.)
• Court: Ohio Supreme Court

Page 171

28 Ohio St.3d 171

503 N.E.2d 167, 28 O.B.R. 262

MONTGOMERY COUNTY BOARD OF COMMISSIONERS, Appellant, v. PUBLIC UTILITIES COMMISSION OF OHIO et al., Appellees. (Two cases.)

Nos. 86-26, 86-651.

Supreme Court of Ohio.

Dec. 30, 1986.

Syllabus by the Court

The Public Utilities Commission of Ohio may not lawfully authorize the recovery of Percentage of Income Payment plan arrearages through the Electric Fuel Component rate.

By entry dated July 6, 1983, the Public Utilities Commission of Ohio ("PUCO") initiated an investigation to consider and determine year-round payment plans, percentage of income payment plans, the PUCO's disconnect, reconnect and deposit rules, winterization and conservation, and the definition of "winter heating season." In re Investigation into Long-Term Solutions Concerning Disconnection of Gas and Electric Services in Winter Emergencies (Nov. 23, 1983), PUCO No. 83-303-GE-COI, Opinion and Order, at 3. This investigation was undertaken, at the request of the Governor of Ohio, in order to promulgate rules ensuring the health and safety of low income consumers threatened with disconnection of service in the winter due to their inability to pay their heating bills. Id. at 2. The PUCO found that the disconnection of services for non-payment by those financially unable to pay constituted an emergency under R.C 4909.16. In response to this emergency, the PUCO requested and received comments and reviewed several alternative ways of resolving the crisis. Ultimately, the PUCO instituted the Percentage of Income Payment ("PIP") plan. ¹ Under the PIP plan, eligible low income gas and electric customers can prevent service disconnections by paying the utility a percentage of their income in lieu of their regular monthly bill. The opinion also provided for recovery, by a utility through statutory rate case proceedings, of arrearages created by the PIP plan.

On December 23, 1983, a number of utility companies filed an application for rehearing requesting the PUCO to permit the affected utilities to recoup PIP arrearages in an expedited manner. On January 19, 1984, the PUCO responded in part that "[i]f after this review we determine that it is necessary to permit a more rapid recovery of costs incident to the percentage of income plan than is presently obtainable through the rate case process we will convene a proceeding to design such a mechanism." PUCO No. 83-303-GE-COI, supra, Entry on Application for Rehearing, at 7.

On June 29, 1984, the East Ohio Gas Company and others filed an application seeking authority to recover PIP customer balances, more than twelve months in arrears, through adjustments to the quarterly gas cost recovery ("GCR") filings. ² In re Application of the East Ohio Gas Company et al. for Commission Authorization of Reconciliation Adjustments to Their Gas Cost Recovery Rates (July 10, 1985), PUCO No. 85-285-GA-UNC, Opinion and Order, at 1. After hearing oral arguments, the PUCO rendered a decision permitting not only the applicant utility companies to recover PIP arrearages through the GCR, but also permitting all other jurisdictional gas companies to likewise recover without having to make separate application for authorization. Id. at 2-3.

On September 3, 1985, the Cincinnati Gas & Electric Company filed an application for authority to recover PIP arrearages through the electric fuel component ("EFC") rate. In re Application of Cincinnati Gas & Electric Co. for Authorization of Reconciliation Adjustments to its Electric Fuel Component Rate (Oct. 29, 1985), PUCO No. 85-1160-EL-UNC. On October 29, 1985, the PUCO issued an entry authorizing the applicant, and all jurisdictional electric companies, to recover their PIP arrearages through the EFC rate. In support of this decision, the PUCO provided the same rationale as it did in case No. 85-285-GA-UNC.

On November 27, 1985, the Montgomery County Board of County Commissioners ("appellant") filed an application for rehearing alleging that the recovery of PIP arrearages through the EFC rate was unlawful and that the proceedings violated due process protection. The PUCO granted appellant's intervention in the matter and considered the legal arguments presented, but ultimately denied the application on December 17, 1985. That decision was appealed to this court as case No. 86-26.

During the pendency of the above matter, the Dayton Power & Light Company sought to recover its PIP arrearages through the EFC rate in a regular biennial EFC proceeding pursuant to R.C. 4905.301. Appellant intervened in this proceeding and, on December 2, 1985, a hearing was held. On February 21, 1986, the PUCO issued its opinion and order holding inter alia that the Dayton Power & Electric Company could recover its PIP arrearages through the EFC rate. In re Regulation of EFC Contained within the Rate Schedules of Dayton Power & Light Co. (Feb. 21, 1986), PUCO No. 85-07-EL-EFC. The PUCO found that this decision was consistent with its judgment in PUCO No. 85-1160-EL-UNC. Id. at 16.

On March 13, 1986, appellant filed an application for rehearing alleging that the recovery of PIP arrearages through the EFC rate was unlawful and that the commission failed to set forth its reasons for authorizing such recovery as is required under R.C. 4903.09. This application was denied on April 8, 1986. That cause has since been appealed to this court as case No. 86-651.

These actions have been consolidated for hearing and are before the court upon appeals as of right.

Lee C. Falke, Pros. Atty., and Janine L. Migden, Columbus, for appellant in case Nos. 86-26 and 86-651.

Anthony J. Celebrezze, Jr., Atty. Gen., Robert S. Tongren and James B. Gainer, Columbus, for appellee in case Nos. 86-26 and 86-651.

James J. Mayer, Cincinnati, Squire, Sanders & Dempsey, Alan P. Buchmann and Richard W. McLaren, Jr., Cleveland, for intervening appellee Cincinnati Gas & Electric Co. in case No. 86-26.

Edward N. Rizer, for intervening appellee Dayton Power & Light Co. in case No. 86-651.

Bell, Randazzo & Bentine Co., L.P.A., Langdon D. Bell and Judith Brick Sanders, Columbus, urging reversal for amicus curiae, Industrial Energy Consumers Group, in case No. 86-26.

Andrew Boyko, law director, Stephen P. Bond, Parma, and James L. Harkins, Jr., Cleveland, urging reversal for amicus curiae, City of Parma, Ohio, in case No. 86-651.

DOUGLAS, Justice.

Pursuant to its emergency powers under R.C. 4909.16, the PUCO created the PIP plan as a response to growing concern "about the number of residential gas * * * [and] electric customers unable to obtain service as a result of disconnection for nonpayment of bills because of the economic recession, increases in the cost of gas and electric service, and a decrease in the level of governmental assistance * * *." PUCO No. 83-303-GE-COI, supra, at 1. The PUCO's exercise of this emergency authority was appealed to this court in a number of cases. ³ These appeals were summarily dismissed upon motion of the PUCO which asserted that the quasi-legislative nature of its decisions was not properly subject to judicial review. In addition, it is the opinion of this court that it is clearly within the PUCO's emergency powers under R.C. 4909.16 to fashion such relief as that provided by the PIP plan and we find the plan of the commission to be manifestly fair and reasonable as a solution to the crisis.

In the same order creating the PIP plan, the PUCO acknowledged that while it was " * * * foreclosing one method by which a utility may exercise its rights to collect * * * " unpaid utility bills, to wit: service disconnection, the utility would still have " * * * available to it all of its other remedies of law * * * " including its ability " * * * to recoup its bad debts through a rate case as provided in Chapter 4909 Revised Code. * * * " Id. at 14. The issue raised by this case, however, is whether the emergency powers extant in R.C. 4909.16 extend so far as to allow the PUCO to authorize recoupment of PIP arrearages through the EFC rate in apparent contravention of the plain meanings of R.C. 4909.191 and 4905.01. Specifically, appellant does not challenge the PUCO's authority to allow the utilities to recoup arrearages caused by the PIP plan. Rather, appellant contends that since such arrearages do not constitute either an acquisition or delivery cost as set forth in the preceding statutes, they may not lawfully be recovered through the EFC rate.

R.C. 4909.191(C) provides that "[t]he electric light company shall demonstrate at the hearing on its fuel component that its acquisition and delivery costs were fair, just, and reasonable. * * *." (Emphasis added.) The term "fuel component" as used in the phrase "electric fuel component rate" is defined in R.C. 4905.01(G):

" 'Fuel component' means acquisition and delivery costs of fuel for the generation of electricity, including the allowable costs of purchased power as defined in section 4909.159 of the Revised Code * * *." (Emphasis added.)

R.C. 4905.01 further defines "delivery cost" and "acquisition cost" as:

"(E) 'Delivery cost' means the cost of delivery of fuel, to be used for the generation of electricity, from the site of production directly to the site of an electric generating facility.

"(F) 'Acquisition cost' means the cost to an electric light company of acquiring fuel for generation of electricity. * * * "

Appellant argues that the precise language of these statutory provisions preclude the PUCO from permitting a utility to recapture its PIP arrearages in an EFC adjustment proceeding. We agree.

As a general rule of statutory construction, the specific mention of one thing implies the exclusion of another. Saslaw v. Weiss (1938), 133 Ohio St. 496, 498, 14 N.E.2d 930 ; State, ex rel. Boda, v. Brown (1952), 157 Ohio St. 368, 372, 105 N.E.2d 643 . This principle is especially pertinent where, as in the cases sub judice, the statute involved is a definitional provision. Had the...