BEFORE THE
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Debra L. Martin :
:
v. : C-2010-2161179
:
Dominion Retail, Inc. :
ORDER DENYING PRELIMINARY OBJECTIONS
On February 16, 2010, Debra L. Martin (Complainant) filed a formal Complaint against Dominion Retail, Inc. (Respondent or DR), alleging that she had paid her gas bills while customer of DR, and that she was not informed of an arrearage until February 2009, after she discontinued service from DR and returned to Columbia Gas for the purchase of gas in addition to distribution. She seeks relief from payment of a bill rendered unfairly and restoration of damage to her credit report.
On March 17, 2010, Respondent filed its Answer, New Matter and Preliminary Objections. The Answer denies that the dates and information stated in the Complaint are correct. In New Matter, Respondent alleges that by the summer of 2007, Complainant had begun to fall behind in paying her gas bill. DR notified Complainant of her arrearage first by letter sent June 25, 2007, for the amount of $665.20. In August 2007, she was sent a second past due notice for $361.65. At the time of her cancellation with DR on January 23, 2008, she owed DR $155.97, which is the amount in question in the Complaint. Additional contacts occurred after that time.
The Preliminary Objections (POs) state that the Complaint should be dismissed for lack of jurisdiction and insufficiency as to substance.
DISCUSSION
Commission regulations permit the filing of preliminary objections:
§ 5.101. Preliminary objections.
(a) Grounds. Preliminary objections are available to parties and may be filed in response to a pleading except motions and prior preliminary objections. Preliminary objections must be accompanied by a notice to plead, must state specifically the legal and factual grounds relied upon and be limited to the following:
(1) Lack of Commission jurisdiction or improper service of the pleading initiating the proceeding.
(2) Failure of a pleading to conform to this chapter or the inclusion of scandalous or impertinent matter.
(3) Insufficient specificity of a pleading.
(4) Legal insufficiency of a pleading.
(5) Lack of capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action.
(6) Pendency of a prior proceeding or agreement for alternative dispute resolution.
52 Pa. Code § 5.101(a).
In deciding the preliminary objections, the Commission must determine whether, based on well-pleaded factual averments of the Petitioners, recovery or relief is possible. Dept. of Auditor General, et al v. SERS, et al., 836 A.2d 1053, 1064 (Pa. Cmwlth. 2003), 2003 Pa. Commw. LEXIS 849; P.J.S. v. Pa. State Ethics Comm’n, 669 A.2d 1105 (Pa. Cmwlth. 1996) 1996 Pa. Commw. LEXIS 11. Any doubt must be resolved in favor of the non-moving party by refusing to sustain the preliminary objections. Boyd v. Ward, 802 A.2d 705 (Pa.Cmwlth. 2002) 2002 Pa. Commw. LEXIS 580. All of the non-moving party’s averments in the complaint must be viewed as true for purposes of deciding the preliminary objections, and only those facts specifically admitted may be considered against the non-moving party. Ridge v. State Employees’ Retirement Board, 690 A.2d 1312 (Pa. Cmwlth. 1997) 1997 Pa. Commw. LEXIS148.
In this case, the POs are based upon a claim of lack of Commission jurisdiction and insufficiency as to substance. 52 Pa. Code §§ 5.101 (a)(1) and (4). DR claims that the crux of the Complaint is that Complainant is not obliged to pay DR her balance owed to DR for gas after cancelling her service with DR. DR states, “Complainant seeks a Commission directive excusing her wrongful refusal to pay her lawful debt to DR.” POs at 2. While I do not doubt that this is an accurate description of the situation as seen by the Respondent, it is not the only possible description.
The Complaint enumerates a number of alleged facts:
· Complainant paid her bills.
· Complainant was not “made aware” of any outstanding money owed to DR until February 2009.
· Complainant was bounced between DR and Columbia in her attempt to resolve the issue.
· It appears that there was a miscommunication between DR and Columbia.
· Complainant should not have to pay for the miscommunication.
See Complaint.
Respondent’s POs claim that the Commission has no jurisdiction except over those items specifically enumerated in the statute and regulations. The statute reads as follows:
(e) Form of regulation of natural gas suppliers.—Except where a natural gas supplier serves as a supplier of last resort, the commission may forbear from extending its regulation of natural gas suppliers beyond licensing, bonding, reliability and consumer services and protections, including all applicable portions of 52 Pa. Code Ch. 56 (relating to standards and billing practices for residential utility service). Subject to the provisions of section 2207 (relating to obligation to serve), nothing in this section shall preclude a natural gas supplier, upon appropriate and reasonable notice to the retail gas customer, supplier of last resort and the natural gas distribution company, from canceling its contract with any customer for legal cause, subject to the customer’s right to have continued service from the supplier of last resort.
* * *
66 Pa. Code § 2208(e).
Commission regulations establish standards of conduct and disclosure for NGSs, including providing accurate information to customers, responding to customer requests, and refraining from enumerated deceptive practices. 52 Pa. Code § 54.43.
In evaluating preliminary objections, the allegations of fact which appear in the Complaint must be assumed to be true for purposes of resolving the POs. These allegations set forth a prima facie case against Respondent since they refer to customer service matters which may or may not fall under the specified sections of the Public Utility Code and Commission regulations. Any doubt in evaluating POs must be resolved in favor of the non-moving party, and that is the Complainant.
Respondent attempts to rely upon the facts set forth in its New Matter, which contradict those listed in the Complaint. Consistent with the procedural rules, facts averred in new matter may be deemed to be admitted. 52 Pa. Code § 5.63. Uncontested facts averred in new matter may be used to support a motion for judgment on the pleadings or summary judgment, but the contents of new matter cannot be used to support a preliminary objection.
Accordingly, this matter will be set for hearing. At the hearing, the Complainant will have the burden of proving by testimony and exhibits that the Respondent has taken some action which is a violation of the Commission’s statute, regulations or outstanding order by substantial evidence. The offending action of the Respondent must be within the jurisdiction of the Commission in order for a remedy to be granted.
One final note for Respondent: where the rules require a “Notice to Plead” to accompany a pleading, the proper placement is ON THE FRONT of the pleading, not placed at the end. See the Rules of Civil Procedure for more guidance.
THEREFORE,
IT IS ORDERED:
1. That the Preliminary Objections filed by Dominion Retail, Inc. against Debra L. Martin in the case filed at PUC Docket No. C-2010-2161179 are denied.
2. That this matter be set for hearing.
Dated: April 22, 2010 ______
Susan D. Colwell
Administrative Law Judge
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C-2010-2161179 _DEBRA L MARTIN VS. DOMINION RETAIL, INC
GARY A JEFFRIES ESQUIRE
DOMINION RESOURCES SERVICES INC
501 MARTINDALE STREET
SUITE 400
PITTSBURGH PA 15212
412.237.4729
DEBRA L MARTIN
37 SOUTH EUCLID AVENUE
PITTSBURGH PA 15202
412.952.0986
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