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05/08/91 ORA E. JACKSON v. PUBLIC SERVICE

May 8, 1991

ORA E. JACKSON, PETITIONER
v.
PUBLIC SERVICE COMMISSION, RESPONDENT. WASHINGTON GAS LIGHT COMPANY, INTERVENOR



Petition for Review of a Decision of the Public Service Commission of the District of Columbia

Rogers, Chief Judge, and Schwelb and Farrell, Associate Judges.

The opinion of the court was delivered by: Per Curiam

This petition for review of a final order of the Public Service Commission of the District of Columbia (PSC), and of the denial of reconsideration of that order, follows a series of administrative adjudications of a consumer complaint in which petitioner contested the accuracy of her Washington Gas Light Company (WGL) bill. Petitioner challenges the PSC's order that she must pay $2,767.87 -- the amount the PSC determined to be still due on her WGL account -- before her gas service will be reinstated. At oral argument petitioner professed to abandon all claims except her contention that the PSC erred in ruling that expiration of the statute of limitations for a contract suit did not bar WGL from refusing to reconnect her gas service until she paid her outstanding balance. Unpersuaded by this contention on the record before us, we affirm the PSC's order.

I.

In 1987, petitioner filed a residential consumer complaint with the Consumer Services Division of the PSC against WGL. Noting that she had tried a variety of informal approaches to resolve the matter, all without success, petitioner sought a hearing before the PSC, alleging that "errors of great magnitude have been made in reference to [WGL's] bills and service" beginning in November 1980, and continuing through June 1983 when WGL terminated her gas service. In response to her repeated requests in the spring and summer of 1987, the PSC held two days of hearings in October 1987 *fn1 and issued a decision on November 9, 1987, in which the hearing examiner concluded that petitioner owed WGL $2,793.53 for gas service from January 23, 1981 through June 14, 1983. The hearing examiner found that the record did not sustain petitioner's assertions that some of her payments, as well as a grant from the DCEO, had not been properly applied to her WGL account. Similarly, the hearing examiner found that there was no evidence to support petitioner's claim that her WGL bills did not correctly reflect the amount of gas that she actually used, recognizing that WGL had met its "burden of establishing the accuracy of [petitioner's gas] meter." n.2 [footnote omitted]

Disputing the hearing examiner's calculation of the late charges to be deducted, as well as the examiner's Conclusions that a $400 DCEO grant had been applied to petitioner's account and that a sharp drop in temperature during the January 1981 billing period explained her increased gas usage, petitioner appealed the hearing examiner's decision to the full Commission. The PSC remanded the matter to a second hearing examiner, with the order that petitioner and WGL each brief the issue of "whether utilities may refuse to connect service until an applicant has paid bills outstanding for three years or more where the utility has failed to bring an action within the prescribed statutory period of time." *fn3 The hearing examiner issued a written decision in July 1988 in which he held that despite the three-year statute of limitations on contracts, WGL could still require petitioner to pay her outstanding balance before it would restore her gas service. The PSC followed this decision with a March 6, 1989 proposed order, Order No. 9229, upholding the hearing examiner's decision on the statute of limitations issue along with his Conclusions that the DCEO grant had been properly credited to petitioner's account and that much colder weather during the January 1981 billing period could account for the sharp rise in petitioner's gas bill at that time. *fn4 PSC ordered WGL to permit petitioner to pay her bill, without finance charges, over a period of at least twenty-four months.

Petitioner filed for reconsideration of the proposed order. As the PSC noted in Order No. 9284, dated May 22, 1989, it chose to treat Jackson's application as exceptions to the proposed order rather than a reconsideration, because a request for reconsideration by the PSC can be appropriate only after the PSC issues a final order. See D.C. Code § 43-904 (1990). A final order, Order No. 9334, affirming the Conclusions of the PSC expressed in the March 6 proposed order, was entered on August 17, 1989, *fn5 and petitioner sought reconsideration of that order. The PSC reviewed the request and issued its last order on February 14, 1990, denying the application for reconsideration.

II.

As indicated, the PSC initially remanded the matter to the hearing examiner to consider the relationship between the statute of limitations governing contract actions and WGL's tariff permitting it to condition restoration of service on payment of any prior indebtedness. *fn6 The PSC stated in particular:

Ms. Jackson's gas service has been disconnected since June 1983. Jackson Ex. 1. at 5. WGL will not reconnect service until Ms. Jackson pays the amount owed because WGL's tariff provides that the customer "shall discharge, either by payment or agreement, any prior indebtedness. . . ." Public Service Commission of the District of Columbia No. 2, 1st Revised Page No. 20. This tariff provision may conflict, however, with Section 12-301 of the District of Columbia Code. This section provides that actions cannot be brought after three years on a simple contract or for any other purpose for which a time limitation is not specifically prescribed. D.C. Code § 12-301 (7), (8) (1981).

Thus, Ms. Jackson and other customers may be barred from bringing stale claims against utilities. Conversely, the utilities also may be barred from collecting unpaid debts after the statutory period of time. The paramount concern, however, is whether D.C. Code § 12-301 preempts the tariff provision. Specifically, whether utilities may refuse to connect service until an applicant has paid bills outstanding for three years or more where the utility has failed to bring an action within the prescribed statutory period of time. [Footnote omitted.]

The PSC therefore remanded for briefing of this issue, see note 3, (supra) . In opposition to WGL's argument on remand that expiration of the statute of limitations does not extinguish or impair petitioner's obligation nor bar the utility from seeking recovery by other means, but simply bars recovery through the use of the courts, see D.C. Code § 12-301 (7) (1989), petitioner argued as follows:

While the statute of limitations does not technically, in contract cases, extinguish the underlying obligation, it does so in practical terms.

The statute of limitations is an equity principle applied to law. The principle is that a right to act in a dispute must be acted on in good faith, in a timely manner so that the dispute can be resolved timely and with fresh evidence. So, the statute of limitations is not mere procedure; it is a substantive obligation imposed on a party claiming right under a contract, which is an essential part of the enforcement of the contract. Contracts are ...


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