Providence Water Supply Bd. Of The City Of Providence v. Div. Of Pub. Utilities
| Decision Date | 28 December 2010 |
| Docket Number | C.A. No. PC 09-5913 |
| Parties | PROVIDENCE WATER SUPPLY BOARD OF THE CITY OF PROVIDENCE, RHODE ISLAND v. DIVISION OF PUBLIC UTILITIES AND CARRIERS OF THE STATE OF RHODE ISLAND, THOMAS F. AHERN ADMINISTRATOR, and KARL W. MARBURGER |
| Court | Rhode Island Superior Court |
DECISION
This matter came before the Court upon a timely appeal by Providence Water Supply Board of the City of Providence, Rhode Island ("Appellant" or "Providence Water") of a September 14, 2009 decision of the Division of Public Utilities and Carriers ("Division").1 In its appeal, Providence Water alleges that the Division's decision was in violation of statutory authority and affected by error of law, as well as arbitrary and capricious and clearly erroneous. Therefore, Providence Water requests this Court to reverse the Division's Report and Order. Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
This appeal arose from a billing dispute for undercharged water supply among Karl W. Marburger ("Mr. Marburger"), Providence Water, and Narragansett Bay Commission ("NBC"). After receiving a bill for water use from NBC for $63,537.46 for water consumption at Putnam Street Laundry, which he owns, Mr. Marburger filed an emergency motion to stay termination of his water supply. (Admin. Hr'g Tr., July 16, 2009 ("Tr.") at 4; NBC Exhibit No. 4.) On June 10, 2009, the Division granted this emergency motion to stay. (Tr. at 4.) An evidentiary hearing was held on July 16, 2009. Id
At the hearing, Alberico Mancini ("Mr. Mancini"), a public utilities engineering specialist at the Division, testified that after reviewing that information in Mr. Marburger's file, he found that a new meter was installed at Mr. Marburger's property in February 1996. Id at 13. He stated that Providence Water did, in fact, read the meter correctly after its installation. Id. Nevertheless, he found that when the reading was entered into the data system, the fixed zero was dropped. Id. Mr. Mancini testified that as a consequence of dropping this fixed zero, Providence Water charged Mr. Marburger for only ten percent of the water he was actually using. Id. Mr. Mancini then stated that Providence Water charged him this amount until July 2006, for just over ten years. Id. According to his testimony, once a complaint was received for the emergency stay, the Division ordered Providence Water to remove the meter and install a new one in January 2007. Id. Providence Water then issued Mr. Marburger a "catchup bill for ten years." Id.
Mr. Mancini also testified that from 1989 to 1996, Providence Water was properly billing Mr. Marburger for the amount of water he used, thus for about six to eight hundred dollars per quarter. Id. at 14. Once the zero was dropped on the new meter, according to Mr. Mancini, the bill slipped to one to two hundred dollars per quarter. Id.
He also testified that when he calculated the bill, he took into account the changes of rates over time to credit about four or five thousand dollars. Id. at 16. Accordingly, Mr. Mancini stated that taking into account the final reading and the ten-year period, Mr. Marburger's current outstanding bill is correct. Id.
On cross examination, Mr. Mancini testified that Mr. Marburger did nothing wrong. Id. at 19. Thus, he testified that Providence Water Supply Board made this billing mistake. Id. Additionally, he stated that the sewage company bases its bill on water rates; therefore, the sewage bill would not have helped Mr. Marburger know that his bill was incorrect. Id.
Joseph Murphy ("Mr. Murphy"), a senior supervisor for commercial service at Providence Water, also testified about the water meter installed in February 1996. He explained that Providence Water uses a fixed zero system on meters that are greater than one inch, like Mr. Marburger's meter. He explained this system as the following: Id. at 26. Mr. Murphy further stated that the zero is required to be included inthe reading and acknowledged that if the zero was not included, the water company would only be billing ten percent of the amount of water actually used. Id.
Mr. Murphy further explained that on the February 20, 1996 bill date, the fixed zero was dropped from this date forward; consequently, Providence Water was only billing Mr. Marburger for a tenth of what it should have billed him. (Tr. at 36.) On October 13, 2006, NBC obtained a read from Mr. Marburger's meter. (Tr. at 36; Providence Water Ex. 1.) Mr. Murphy testified that if NBC finds a discrepancy between its reading and Providence Water's billing, NBC will notify Providence Water. (Tr. at 39.) Thus, in this case, NBC contacted Providence Water, whose supervisor verified NBC's reading. (Tr. at 39; Providence Water Ex. 1.) After this reading, Providence Water replaced the old meter with an automatic meter reading device ("AMR meter"). (Tr. at 39.) On February, 27, 2007, the new AMR meter was installed and started at zero. (Tr. at 39; Providence Water Ex. 1.)
The record further reflects that on March 15, 2000, Mr. Marburger's water bill was $13,499.97, which was an increase from his bills dating back to 1997 in which the maximum owed was $204.96. (Tr. at 43; Providence Water Ex. 1) Mr. Murphy testified that this bill was a result of the inclusion of the fixed zero and resulting seven digit read. Id. Mr. Murphy further testified that the $13,499.97 "must have been the amount from when the meter was installed to the present day, minus any possible adjustment. Id. Nevertheless, this number was then "zeroed out" because "a young lady or gentleman from [Providence Water] went in and saw the charge, saw the seven digit read, saw it was always done at five—six digits, went in and reentered the read, dropping the stationaryzero." Id. 43-44. After this incident, until July 2006, Mr. Marburger's water bills did not exceed $139.27. (Tr. at 44-46; Providence Water Ex. 1.)
Once the AMR meter was installed, Mr. Murphy became more involved in Mr. Marburger's case. Id. at 48-49. He testified that the meter tested at one hundred percent prior to its installation. Id. at 49. He further testified that he retested the meter before the hearing, and the results came to one hundred percent. Id. Mr. Murphy then stated that he then performed the audit that gave Mr. Marburger the $9618.90 credit. (Tr. at 55.) Thus, Providence Water listed the disputed charges as $49,450.15. (Tr. at 59; Providence Water Ex. 1.) The total current charges from the disputed period forward is $26,197.91. (Tr. at 59-60; Providence Water Ex. 1.) Mr. Marburger has made $16,206.58 of payments on this total. (Tr. at 60; Providence Water Ex. 1.) Thus, the record reflects that Providence Water found the total due to be $59,441.48. (Tr. at 60; Providence Water Ex. 1.)
On cross examination by Mr. Marburger, Mr. Murphy answered in the affirmative that the employees who read the meters are supposed to put the information from the meter accurately into the system. (Tr. 69-70.) Additionally, Mr. Murphy testified that from reviewing Mr. Marburger's records in 2000, when the bill was changed, it was not as a result of a complaint from Mr. Marburger; instead, a Providence Water employee Id. at 71. Mr. Murphy also testified that taxes are calculated off of the actual bill; thus, high taxes would not have helped to inform Mr. Marburger that he was underbilled. Id. at 72.
During his testimony, Mr. Marburger stated that the property in question is Putnam Street Laundry, a Laundromat that he has operated for approximately thirtyyears. Id. at 81, 87. He further testified that when he receives his bills he "read[s] the figures, and [he] just pay[s] it." Id. He stated that he relies on bill amounts when he computes how much to charge his customers and explained that he would go out of business if he was required to pay the total amount of $59,441. Id. at 81-82. He also testified, however, that his current prices are approximately the same as his prices from 1993 to 1996. Id. at 87. Mr. Marburger conceded that he makes a profit from this Laundromat. Id. at 87.
Following the testimony, the Hearing Officer discussed with the parties the application of the current Division Rules with respect to water utilities. (Tr. at 127.) Although one of those rules deals with the current issue, the parties agreed that those rules only apply from their effective date, after which this incident occurred. Id. As a result, the preceding version of the Division's rules control. Id. Under those rules, a Division order allowed for company backbilling for ten years prior if actual data is presented. Id.
On September 14, 2009, the Hearing Officer issued a fifty-three page decision which concluded that Mr. Marburger is liable to Providence Water only for the water consumed from February 1997 to February 2000. (Division Decision, September 14, 2009 ("Decision") at 49, 50.) In this decision, the Hearing Officer made findings of fact and conclusions of law before producing his order.
The Hearing Officer detailed the testimony of the witnesses as it is displayed in the transcript. Id. 1-30. He then...
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