LUNTZ CORPORATION, APPELLANT, v. PUBLIC UTILITIES COMMISSION OF OHIO ET AL., APPELLEES.
No. 96-962
SUPREME COURT OF OHIO
October 1, 1997
79 Ohio St.3d 509 | 1997-Ohio-342
Submitted June 11, 1997 — APPEAL from the Public Utilities Commission of Ohio, No. 94-1783-EL-CSS.
{¶ 1} This appeal involves an order by the Public Utilities Commission of Ohio in a complaint case brought by Luntz Corporatiоn (“Luntz“) against Ohio Edison Company for failing to disclose possible alternate rates under which Luntz might have been served from 1980 through 1991.
{¶ 2} Luntz is a family-run business that buys, processes and brokers scrap metal and sells it to steel mills and foundries. Luntz has facilities located in several Ohio cities, including Warren. Ohio Edison has provided electric service to Luntz‘s Warren facility under a number of different tariffs since the mid-1970s.
{¶ 3} In 1981, Luntz contacted Ohio Edison about securing an adequate electric supply for a new hydraulic shear. The shear used hydraulic pistons to power a guillotine-like blade to cut metal that did not fit into Luntz‘s automobile shreddеr. Ohio Edison analyzed the electric demands and determined that the most economical way both to provide the necessary electric capacity to Luntz for the new shear and to avoid electrical interference to other customers near Luntz‘s facility was for Luntz to construct a new substation and take service at the 23 kV transmission voltage. After Luntz installed the substation and began tаking service
{¶ 4} In 1991, Luntz hired a consultаnt to audit Luntz‘s electric bills and to help Luntz reduce its power costs. Shortly thereafter, Luntz contacted Ohio Edison with questions regarding Luntz‘s electric-load demand. Ohio Edison met with Luntz, provided Luntz with billing and usage informatiоn and power factor information, and ultimately reinstalled a magnetic tape meter at Luntz‘s request in mid-1991.
{¶ 5} On November 4, 1994, pursuant to
{¶ 6} Luntz also alleged that Ohio Edison had wrongfully removed the magnetic tape meter from Luntz‘s facility in 1986, which prevented Luntz from monitoring its power factor and on-peak/off-peak electrical demands, and prevented Luntz from receiving an off-peak discount.
{¶ 7} Ohio Edison filed an answer to the complaint, denying the substance of the complaint, sеtting forth various affirmative defenses, and asking that the complaint be dismissed. An attorney examiner found that the complaint stated a claim cognizable under
{¶ 9} The cause is now before this court upon an appeal аs of right.
Steve J. Edwards, for appellant.
Betty D. Montgomery, Attorney General, Duane W. Luckey and Johnlander Jackson-Forbes, Assistant Attorneys General, for appellee, Public Utilities Commission of Ohio.
James W. Burk; Roetzel & Andress Co., L.P.A., and George W. Rooney, Jr., for intervening appellee, Ohio Edison Company.
Per Curiam.
{¶ 10} Appellant poses eight propositions of law, nearly all of which ask us to reweigh the evidence of record. For the reasons that follow, we decline to do so and affirm the order of the commission below.1
{¶ 11} We will not reverse a commission order unless it is against the manifest weight of the evidence.
{¶ 12} The instant appeal is based almost entirely upon factual arguments. The commission‘s decisions on these issues are all amply supported by record evidence and are not subject to reversal on that basis. Id.
{¶ 13} Luntz raises only two issues that could be considered questiоns of law: (1) whether Ohio Edison had a duty to inform Luntz of alternate rates and (2) whether the definition of the term “distribution line” in
{¶ 14} The commission has considered alternate-rate arguments similar to those now posed by Luntz, and established a positive-inquiry standard regarding the availability of alternate customer rates. White Plastics Co., Inc. v. Columbus & S. Ohio Elec. Co. (Sept. 25, 1984), Pub. Util. Comm. No. 83-650-EL-CSS, unreported. Under White Plastics and its progeny a utility has a duty “upon inquiry, to inform the customer about the existence and availability of an alternate rate. However, it is not a requirement that a utility itself initiate regular reviews of a customer‘s bills in order to determine if an alternate rate is more advantageous. It is upon the inquiry of the customer that a company has a duty to disсlose the availability of alternate rate schedules.” (Emphasis added.) N. Hill Marble v. Ohio Edison Co. (Feb. 5, 1985), Pub. Util. Comm. No. 84-610-EL-CSS, unreported, at 2.
{¶ 16} We have not previously reviewed the propriety of the commission‘s pоsitive-inquiry standard. We find that this policy is reasonable, striking a balance between a utility‘s duty to serve its customers in a reasonable manner, where the utility lacks intimate knowledge about fluctuations in the custоmers’ day-to-day and future business operations, and its customers’ desire to be served under the most economical rate possible.
{¶ 17} Moreover, “long-standing administrative interpretations are entitlеd to special weight.” Cleveland v. Pub. Util. Comm. (1981), 67 Ohio St.2d 446, 451, 21 O.O. 3d 279, 282, 424 N.E.2d 561, 565. Yet the commission must, when appropriate, be willing to change its policies. Consumers’ Counsel v. Pub. Util. Comm. (1984), 10 Ohio St.3d 49, 51, 10 OBR 312, 313, 461 N.E.2d 303, 304-305.
{¶ 18} Luntz made little effort to show that the commission should now require Ohio Edison to conduct ongoing reviews of the usage and load demands of each of its customers to determine whether those customers are being served on the most economical rаte possible. Absent proof that the positive-inquiry policy should be changed, the commission is bound to apply the standard in effect at the time it reviewed the matter in question. Id.
{¶ 19} Under the circumstances presently before us, we find that the commission properly refused to change its positive-inquiry standard in favor of the standard espoused by Luntz. Thus, Ohio Edison had no affirmative duty to monitor Luntz‘s usage and demand levеls and notify Luntz that there may have been a more economical rate under which Luntz could be served.
{¶ 21}
“As used in sections 4933.81 to 4933.90 of the Revised Code:
“* * *
“(C) ‘Distribution line’ means any electric line having a design voltage below thirty-five thousand volts phase to phase which is being or has been used primarily to provide electric service directly to electric load centers by the owner of such line.” (Emphasis added.)
{¶ 22} The commission explained the limited application of this definition as follows:
“The Genеral Assembly in enacting that section and following sections of the Revised Code was determining utility boundaries using distribution lines. In order to avoid the requirement that this Commission make an individual determination regarding whether а particular line functioned as a distribution line or a transmission line, the General Assembly defined 23 kV lines for the purpose of that statute as distribution lines.”
{¶ 23} We agree. The bright-line definition used by the General Assembly was designed as an administrative convenience to reduce the number of individual power lines that the commission needed to consider in the mapping- and territory-certification process. The General Assembly did not intend that this particular definition of “distribution line” create a bright-line test for any other purpose, and expressly limited its application to the Certified Territory Act.
{¶ 24} Luntz had the burden of proving its complaint against Ohio Edison. Grossman v. Pub. Util. Comm. (1966), 5 Ohio St.2d 189, 34 O.O.2d 347, 214 N.E.2d 666; Ohio Bell Tel. Co. v. Pub. Util. Comm. (1984), 14 Ohio St.3d 49, 50, 14 OBR 444, 445, 471 N.E.2d 475. The commission considered the conflicting
Order affirmed.
MOYER, C.J., RESNICK, F.E. SWEENEY, YOUNG and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, J., concurs in judgment only.
PFEIFER, J., dissents and would reverse the commission‘s order.
FREDERICK N. YOUNG, J., of the Second Appellate District, sitting for COOK, J.