In the course of inspecting the gas meter in the basement, PGW observed that it had been reinstalled backwards and with the dial side facing the foundation wall. In this position, the meter could not record gas usage, yet permitted gas to come to the property. This was obvious evidence of tampering and unauthorized use of gas. Pictures of the reversed meter were taken. The meter was removed and the service line was plugged and capped to eliminate possibilities of further hazards and further tampering. A PGW street crew called to the scene dug up the street outside the property and determined that the gas leak was in the service line to the Cruz' home. The line had to be cut off at an underground point outside of the house to eliminate the leak.
PGW left no notice at the residence advising that the gas meter had been removed or as to why the gas service had been shut off. Cruz deduced that PGW had terminated the service and promptly contacted lawyers at Community Legal Services ("CLS"). Cruz' Deposition N.T. 15, 16, 19. The CLS attorneys promptly contacted PGW on Mr. Cruz' behalf. It was PGW's policy and practice at the time to give customers like Cruz the post-termination opportunity to contest the proposed restoration of service charges and to present any evidence that might warrant relief from or modification of the charges. CLS had post-termination discussions with the Claims and Insurance Department.
In such discussions, Cruz, through counsel, was advised of the reasons for the shut-off, was given the opportunity to respond, and was told of the charges to be paid to have the service restored. He was required to pay a standard by-pass charge, a $ 172.00 deposit representing two months of average gas usage and $ 152.05 representing one-half owed for actual meter gas consumption. An agreement was reached whereby, in return for the immediate restoration of service, Cruz paid $ 372.05, with the balance payable in later installments.
On March 26, 1984, PGW issued a $ 687.80 bill based upon a meter reading by Cruz. He complained about the bill to a local PGW office because it was significantly greater than billings for the same season of the previous years. Cruz testified at his deposition in this case that he read the gas meter in his basement and called in the readings to PGW. It is from this reading that his protest as to the billing arose. (Cruz Deposition, N.T. 7, 8). He claims that he had asked PGW to come out to read the meter. Prior to that occurring, the reversed meter was discovered. Cruz was asked if the PGW photographs taken of the meter facing the foundation wall accurately portrayed the meter as it existed in March, 1984 when he claims that he read it. He was also asked how he was able to read the meter, since the dial face was against the foundation wall. (Id. at 37-38, 25). He was instructed by his attorney not to answer these questions on the grounds that his answers might tend to incriminate him, invoking privilege under the Fifth and Fourteenth Amendments of the United States Constitution. Similarly, he was asked if he was aware that gas was being stolen at the property and whether anyone acting on his behalf moved the meter. Again, he invoked his Fifth Amendment privilege. (Id. at 18-19, 20).
It is clear that Cruz was not prepared before termination or thereafter to offer any explanation as to how the meter found by PGW in a reversed position got that way or even to deny that there was meter tampering and gas theft either by him or someone on his behalf. Without a sufficient explanation of the situation, the gas service to the Cruz property would have been cut off after a post termination hearing.
As a matter of law, plaintiff Cruz would be unable to prove at trial that he suffered any compensatory loss by reason of the termination of service without prior notice and hearing.
Not every "property interest" invasion by a state or municipality requires prior notice and hearing.
Where there are serious concerns which must be abated, the due process requirements are satisfied if the "notice and rudimentary hearing . . . follow as soon as practicable." Goss v. Lopez, 419 U.S. 565, 583, 42 L. Ed. 2d 725, 95 S. Ct. 729 (1974). In Goss, the Court found that since Ohio statutorily extended to the students in question the right to public education, they had a property and liberty interest in continuing their education such that the state could not withdraw that right without grounds of misconduct and absent fundamentally fair procedures to determine whether the misconduct had occurred. Id. at 573-574. However, the Court recognized that there are recurring situations where prior notice and hearings cannot be insisted upon. "Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process may be immediately removed from school," Id. at 582, so long as a prompt post-removal notice and hearing is given. In the issue at bar, the undisputable safety concerns presented by the tampering at the Cruz property and the unavoidable duty upon the service provider to take immediate steps to abate the hazard warranted termination without prior notice and hearing.
Assuming that Cruz had a property interest in continuing service at the time of investigation of the gas leak, the question remains as to what process was due. Goss v. Lopez, supra, at 577, quoting Morrissey v. Brewer, 408 U.S., 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1971). Application of the due process clause is an "intensely practical matter," Goss at 578, that "negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961). Plaintiff's insistence that no abatement action can be taken in hazardous situations determined by PGW to require shut off until there has been written notice, a hearing and a determination of fault is entirely misplaced. Safety considerations constituting emergency conditions carve an exception out of the ordinary notion of pretermination notice and hearing procedure.
Plaintiffs cite Dawes v. Philadelphia Gas Commission, supra, and Myers v. City of Alcoa, 752 F.2d 196 (6th Cir. 1985) for the proposition that in every situation there must be prior notice and hearing before termination of a utility service supplied by a state or municipality. Dawes, supra and Myers supra, do not purport to address the emergency safety concerns presented in the Cruz situation. Dawes is limited by its facts. The Dawes court prohibited the termination of gas service for alleged non-payment of bills without adequate notice and opportunity for predetermination hearing. It had no occasion to address the safety exception recognized in Goss. Likewise, Myers,11 did not concern imminent danger presented by continuation of the utility service. In that case, the supplier of the service determined that there had been an unlawful removal of its meter and replacement with a stolen metering device of another utility company. The customer denied any knowledge or participation in the unlawful acts. In Myers the plaintiff's action did not present safety concerns for the customer, the public or the utility. Moreover, the Myers court recognized that imminent danger considerations could justify departure from prior notice and hearing requirements. Id. at 199-200, citing Jackson v. Davis, 530 F. Supp. 2 (E.D. Tenn. 1981), aff'd, 667 F.2d 1026 (6th Cir. 1981) (building unsafe because of defective or dangerous electric wiring system and service disconnected where continuation of service presented safety and health hazard). Here, the undisputed evidence is that continuation of service through a tampered meter presented an unacceptable risk of catastrophe. Therefore, termination was a necessary and responsible precaution undertaken by PGW.
Finally, Cruz' claim that he was entitled to continued gas service despite evidence of meter tampering and unauthorized usage erroneously assumes that the source of his property interest is the Pennsylvania Public Utility Code, 66 Pa. C.S.A. § 1501. The Code mandates that "every public utility shall furnish and maintain adequate, efficient, safe and reasonable service and facilities [and] such service shall be reasonably continuous and without unreasonable interruption and delay." Id.12 Dawes, supra. As a matter of law, the Philadelphia Gas Commission and its subsidiary instrumentalities, are exempt from regulation under the state Code, 351 Pa. Code § 3.3-100, 3-909. Plaintiff's property interest, if any, derives from the regulations promulgated by the Philadelphia Gas Commission. Cruz had no property right based on statute or PGW regulation to continuation of service where a dangerous condition or unauthorized use of gas existed.
After obtaining service, plaintiff became entitled to be free of arbitrary or irrational action by the utility through receipt of notice and hearing as soon as practicable after abatement of the conditions giving rise to the claim of apparent or potential hazards.
This court finds that Mr. Cruz was not entitled to pretermination notice and hearing, but was entitled to a prompt post termination hearing.
Cruz was accorded a post termination hearing where he was accompanied by counsel.
The Philadelphia Gas Commission has amended its regulations to provide that the termination of service without notice shall be limited to safety reasons, which shall include gas leaks or other potentially hazardous conditions, unauthorized interference with, or diversion or use of gas delivered to the dwelling, installation of unauthorized or prohibited equipment, tampering with meters or any other condition which may endanger the safety of any person or property or may prove harmful to the energy delivery system of the company. PGW Regulation 4.11.
Effective December 25, 1985, the Philadelphia Gas Company adopted regulations requiring that written notice be left at the property stating the reasons for the shutoff and a statement of the rights and procedures available to the customers of record to dispute the shutoff if they choose to contest the action. In the case of a gas leak or other no-fault condition, the service will be restored when the necessary repair is made. In all instances of possible intentional misconduct, the customer must call PGW to schedule a hearing at a telephone number given or come to a given address. A decision on resumption of service must be made in writing within two business days of the customer's application for continued service. PGW Regulation 2.4 (March 7, 1986). The two day time period is reasonable for all parties concerned. The time period allows PGW to complete an investigation and allows the customer to obtain legal counsel if desired since the factual basis for terminating service because of intentional misconduct could suffice for criminal charges.
For these reasons, defendants are entitled to summary judgment on plaintiff Cruz' claim. Cruz suffered no violation of his constitutional due process rights. He offered no proof that PGW erred in concluding that he knew that the meter had been tampered with and that gas was being stolen. Therefore, he offered no proof to support the claim of a loss of an entitlement. Because the regulations as adopted meet the prompt notice and hearing requirements of the due process clause, the proposed subclass which Cruz was alleged to represent will not be certified.
In her complaint, Eneida Rodriguez claims that she was denied continuation of gas service without due process of law. After discovery of meter tampering and theft of gas at her property, PGW shut off the service and required that, as a condition of restoration of service, she pay a certain sum. Rodriguez filed a Chapter 13 petition under the Bankruptcy Code. PGW insisted on the payment despite the existence of the petition. She claims that the restoration charges were contrary to the Philadelphia Gas Commission regulations and that she was treated differently because of the unauthorized usage.
In support of their motion for summary judgment, defendants have submitted the affidavit of William Oland, PGW Manager of the Collection Department, which attests that on July 20, 1983 gas service was terminated to Rodriguez' property from the street curb box for non-payment of her bills after notice and opportunity for hearing. A final meter reading was obtained on August 16, 1983 and a final bill was sent to Rodriguez in September 1983. There was no dispute of the shut-off by Rodriguez. Based upon information that there was a possibility of unauthorized usage at the property, an investigation by the Meter Investigation Unit was conducted on January 19, 1984. PGW found that the gas service had been turned on in an unauthorized manner and that nails had been jammed into the meter dials to keep them from functioning and recording the gas usage. The gas was being used by Rodriguez to fuel a house heater, water heater and range. With her knowledge, PGW removed the meter and terminated the service from within the property. Within three days of the termination, Rodriguez telephoned PGW.
Rodriguez has not countered PGW's affidavit in any way. She has not made herself available for discovery to either PGW or her attorneys. Therefore, on considering defendants' motion for summary judgment, the facts set forth in the Oland Affidavit must be taken as uncontested.
Rodriguez does not deny theft of the gas or tampering with the meter. She complains that she was not told accurately what procedures to follow or amounts to be paid to get the gas service restored and that PGW had no procedure by which she could obtain a hearing on the reasons for the shut-off of the service.
When Rodriguez telephoned PGW she was initially given erroneous information by defendant Sam Hart, a technical assistant of PGW's gas theft unit. He told her that the amount was in excess of $ 2,500. There is no allegation that Hart's error was the result of anything other than negligence. Not being satisfied with Hart's response over the telephone, Rodriguez went to the local PGW office and spoke to a PGW representative. She was advised that the amount owed was $ 2,843.67 and that to have the service restored she would have to pay a total of $ 873.07.
Because she believed she had no assets or financial ability to pay the charges, she filed for bankruptcy.
In analyzing Rodriguez' claim, the court notes that in September, 1983, she did not protest the termination of the gas service for non-payment. Instead, the gas service was restored by someone other than PGW. She does not contest the fact that after the September, 1983 gas shut-off, she or someone with her knowledge and permission turned the gas back on and tampered with the meter in such a manner that usage could not be recorded. She had no property right in continuation of service that she was not authorized to receive or to pretermination or post-termination notice and hearing related to shut-off of the service after the on-going customer contract had ended.
After the September, 1983 shut-off, she was placed in the position of having to reapply for service. Upon her reapplication, despite a history of unauthorized use and tampering, she was not denied service, but rather was told that she would have to pay $ 873.04 and make arrangements to pay the balance owed. She was given an itemized breakdown of the charges. She was represented by counsel. She was allowed to grieve through an internal review procedure which existed at PGW.
Rodriguez did not avail herself of the procedures known to her and her attorneys.
Rodriguez also complains of a $ 48.00 fee included in the PGW turn-on charge. The $ 48.00 fee is imposed by PGW as a "matter of long-standing policy." Rodriguez complains that this policy is not authorized by the Philadelphia Gas Commission tariff, but did not challenge this policy before the Commission. She complains here that the policy as applied to her violates the equal protection clause of the Fourteenth Amendment. This argument must be rejected. If the charge is uniformly applied to all applicants, there can be no just complaint of unequal treatment. In claiming that the $ 48.00 turn-on charge violates the equal protection clause, plaintiff is making a veiled due process claim; that is, plaintiff is claiming that the $ 48.00 turn-on fee violates the PGW Tariff. However, plaintiff cannot effectively complain about a denial of due process because an appeal process to the Philadelphia Gas Commission existed at the time of plaintiff's claim. Plaintiff failed to exhaust the administrative remedies provided by the Philadelphia Gas Commission. It would be inappropriate for this federal court to interpret the Tariff and Regulations of the Philadelphia Gas Commission, especially where PGW claims that the existing regulations authorize the action taken. Pennhurst State School & Hospital v. Halderman, 465 U.S. 1038, 79 L. Ed. 2d 712, 104 S. Ct. 1315 (1984); In Re Begley, 46 B.R. 707, 717 (E.D. Pa. 1984). PGW contends that Regulation 6.3 of the Tariff authorized the $ 48.00 charge, the requirement that damages caused be paid for, and satisfactory assurance given that no damage shall be caused in the future. That regulation reads:
6.3 TAMPERING -- THEFT. The Company reserves the right to remove any of its property which has been damaged
or which, in reasonable prospect of being damaged or where there is evidence that such property has been tampered with, and the Company shall be under no obligation to replace such property until the damage has been paid for and satisfactory assurance given that no damage shall be caused in the future. Instances of tampering or theft of gas or other Company property may be subject to prosecution.
PGW also submits that it finds in Regulation No. 2.4 discretion to impose reasonable conditions in addition to those which may otherwise be specified in other parts of the regulations. That section reads:
2.4 RIGHT TO REJECT -- The Company may limit the amount and character of gas service it shall supply or may reject requests for initial or increased service if this is necessary to protect the supply of service to any customer (5) or for other good and sufficient reasons.