No. 46 W.D. Appeal Dkt. 1982, Appeal from the Order of the Commonwealth Court at No. 62 C.D. 1981 affirming the Order of the Pennsylvania Public Utility Commission at Dkt. No. F-08822411, 1979, dismissing appellants' complaint.
Larry B. Selkowitz, Widoff, Reager, Selkowitz & Adler, P.C., Harrisburg, for appellants.
Edward S. Stiteler, Greensburg, for West Penn Power Co.
Robert P. Meehan, Asst. Counsel, Harrisburg, for Pa. Public Utility Com.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., files a dissenting opinion in which Larsen and Hutchinson, JJ., join.
This is an appeal from an opinion of the Commonwealth Court affirming an order of appellee, the Pennsylvania Public Utility Commission (hereinafter "P.U.C."), which dismissed appellants' complaint. The lower court opinion is reported at 66 Pa. Commw. 282, 443 A.2d 1373 (1982).
Appellants, Gary and Doris Burleson, are the owners of a mobile home located in Smithfield, Pennsylvania. On April 10, 1979, they filed an informal complaint with the Consumer Services Bureau of the P.U.C. claiming that their utility company, West Penn Power Company, the appellee, (hereinafter "West Penn") had overcharged them for electric service since January of 1978. The total amount of the alleged overbilling was less than $200.00. After they were denied relief, appellants retained counsel and filed a formal complaint with the P.U.C. dated October 9, 1979 claiming that they had been chronically overbilled from January, 1978 through June, 1979.
An Administrative Law Judge heard arguments on the complaint and denied appellants relief by decision dated July 17, 1980. Appellants filed exceptions which were subsequently argued and dismissed. Appeal was then taken to the P.U.C. which affirmed the Administrative Law Judge's decision after oral arguments were heard in an opinion dated December 11, 1980. Subsequently, appellants appealed to the Commonwealth Court which affirmed the P.U.C. We now affirm.*fn1
In a complaint for overbilling by a customer of a public utility, the legislature has placed the burden of proof upon the complainant. See 66 Pa.C.S.A. § 332(a). The P.U.C. promulgated a rule in Malcom Waldron v. P.U.C., C-77100047, which provided that in such proceedings a complainant may establish a prima facie case that can not be defeated, in limine, by the complainant's failure to prove the utility's meter was misread or otherwise inaccurate. Recognizing that technical expertise to test meter accuracy may not be available to a complainant, the P.U.C. in Waldron established other evidentiary criteria for determination upon the whole record of whether a complainant has established a prima facie case.
Under these requirements, a complainant may establish a prima facie case by showing that ...