Palmer v. Columbia Gas Company of Ohio

• Decision Date: 02 May 1972
• Docket Number: No. C 72-14.,C 72-14.
• Citation: Palmer v. Columbia Gas Company of Ohio, 342 F.Supp. 241 (N.D. Ohio 1972)
• Parties: Morris R. PALMER et al., Plaintiffs, v. COLUMBIA GAS COMPANY OF OHIO, Inc., Defendant.
• Court: U.S. District Court — Northern District of Ohio

342 F. Supp. 241

Morris R. PALMER et al., Plaintiffs, v. COLUMBIA GAS COMPANY OF OHIO, Inc., Defendant.

No. C 72-14.

United States District Court, N. D. Ohio, W. D.

May 2, 1972.

R. Michael Frank, Russell Kelm, Toledo, Ohio, for plaintiffs.

Franklin Hayward, John Hayward, Cary Cooper, Toledo, Ohio, for defendant.

OPINION

DON J. YOUNG, District Judge:

This action was commenced by the plaintiffs individually and as a class action seeking injunction, compensatory and punitive damages, and declaratory relief.

The complaint alleged that the defendant, acting under color of state law, and particularly under Section 4933.12 of the Ohio Revised Code, had terminated gas service to the named plaintiffs, and in so doing had deprived the named plaintiffs and the class they represent of procedural due process guaranteed them by the Fifth and Fourteenth Amendments to the United States Constitution. The class was described as all customers of the defendant who had had their gas service involuntarily terminated, or who would in the future have the same so terminated.

A temporary restraining order was entered, and a three-judge court was empaneled to hear the plaintiffs' motion for a preliminary injunction and the defendant's motion to dismiss for failure to state a claim and for lack of jurisdiction. After it convened, that Court determined that the issues presented were not properly triable by a three-judge panel, and dissolved itself, leaving the matter to be heard by a single judge of the District Court.

The matter of the issuance of a preliminary injunction was heard upon the evidence over a period of two days. Motions were filed by a number of individuals for leave to intervene as parties plaintiff. Ruling upon the motion to intervene was reserved, the defendant's motion to dismiss was overruled, and a preliminary injunction was issued, which by stipulation was confined to the operations of the defendant company in its northwestern district.

The defendant filed an answer setting forth five defenses, and a counterclaim against the named plaintiffs upon an account for gas furnished to them. The named plaintiffs filed a reply denying any account between them and the defendant, and setting up as an affirmative defense that the counterclaim did not state a claim upon which relief could be granted. The defendant also filed a motion to dismiss the class action.

Thereafter, the matter came on to be heard upon the issue of the right of the plaintiffs and the class of plaintiffs to injunctive relief. Determination of issues involved in the motion to dismiss the class action, and limiting or defining the class was reserved, as was the matter of damages.

Further evidence was adduced, from which it appeared that violations of the preliminary injunction had occurred on the very day that the final hearing on the issue of injunctive relief was taking place. At the conclusion of the hearing, the Court reserved its ruling.

Shortly after the hearing, plaintiffs filed a motion for an order requiring the defendant to show cause why it should not be punished for contempt for the violations of the preliminary injunction. An order to show cause was issued and the matter was heard. The Court found from the evidence at the hearing that the injunction had been violated by an employee of the defendant acting contrary to instructions given him by his superiors, and that the defendant had remedied the violations promptly after it discovered they had occurred. The Court discharged the rule to show cause against the defendant, and since no order to show cause had been issued against the offending employee, so that he had not been given notice and an opportunity to be heard, no punishment could be visited upon him for his contemptuous acts.

These preliminary matters aside, the case is now in a posture to rule upon the question of whether the plaintiffs are entitled to injunctive relief.

The evidence shows that the defendant Company is a very large concern, with its headquarters in Columbus, Ohio, which is about a hundred and forty miles from Toledo. All of the billing and issuing notices of termination of service, hereinafter referred to as "shut-off notices", were, at the time the action was commenced, handled by a computer in Columbus. All bills and notices were mailed there, although the envelopes bore as a return address the defendant's Toledo office address.

The defendant has approximately one hundred forty thousand customers who are served by its Toledo office alone. During any calendar year, from one hundred twenty to one hundred forty thousand shut-off notices are issued for this office, and about six thousand actual shut-offs are made. About fifteen hundred of these would be made during the five winter heating months from November to March. During the month of December, 1971, about nine thousand shut-off notices were issued, and about four hundred actual shut-offs made.

The procedures are for the defendant to read meters no oftener than bimonthly, but sometimes no readings of particular meters are made for periods of many months. The defendant's computer is programmed to estimate bills when no readings are available to show the actual amount of gas consumed.

If a monthly bill is not paid by the consumer, this amount is carried forward and added to the bill for the succeeding month. If the total for that month were not paid by the due date, a shut-off notice would be issued to the consumer approximately five days later. The shut-off notice indicates that the consumer has four days to pay the bill. If the bill is not paid, at the end of that period an employee called a "collector" goes out and shuts off the gas.

The evidence showed that the estimated bills issued by the computer were usually underestimated; that often when a protracted period elapsed without an actual meter reading being made, the bill after the meter was read would be many times greater than the consumer's usual bill, and sometimes the consumer, especially if he were poverty-stricken, would be unable to pay so large a sum; that in such case the consumer could make arrangements to pay the sum over a period of time, but each month during such period he would receive a shut-off notice, which he was sometimes told by the defendant to ignore, but which, in any event, was not enforced by an actual shut-off; and that there were other types of dispute between the defendant and its consumers which resulted in shut-off notices being sent after the dispute was resolved, shut-offs sometimes being made without warning under those notices.

The evidence also showed that when the collectors went out to shut off gas, they frequently did so without any announcement whatever to the consumer, even though the consumer was sitting right in his house, so that the first notice he would have of the shut-off was that his house got cold, or his kitchen range would not light; that mistakes were made, so that a consumer who received a shut-off notice and promptly paid the bill sometimes found his gas service terminated anyway; and that in many cases, when the service was shut off, even though the bill had been paid, or when it was paid promptly after the shut-off, it was sometimes a matter of days before service was restored.

The evidence also showed that the defendant's collectors and clerical employees were hostile, arrogant, and unyielding in dealing with consumers whose gas service had, rightly or wrongly, been terminated. Often the consumer could get relief only by appealing to some influential person in the community who could use his connections to by-pass the defendant's clerical employees and get through to some one of defendant's executives.

The evidence as a whole revealed a rather shockingly callous and impersonal attitude upon the part of the defendant, which relied uncritically upon its computer, located in a distant city, and the far from infallible clerks who served it, and paid no attention to the notorious uncertainties of the postal service.

Although it was hardly necessary to do so, plaintiffs produced evidence that winters in Ohio, and particularly in northern Ohio, are usually bitterly cold, wet and windy. A recent newspaper article told of an Englishman who rode a bicycle around the world, but his journey almost failed when he ran into a northern Ohio winter storm, the only climatic difficulty which actually threatened the completion of his expedition.¹ The lack of heat in the winter time has very serious effects upon the physical health of human beings, and can easily be fatal. A sudden withdrawal of...