Myers v. Pub. Util. Comm. - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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Myers, Appellant, v. Public Utilities Commission of Ohio
et al., Appellees.
[Cite as Myers v. Pub. Util. Comm. (1992), Ohio
St.3d .]
Public Utilities Commission -- Electric companies -- Electric
service to garage charged under general service rate, not
residential rate, when.
(No. 91-1044 -- Submitted June 2, 1992 -- Decided August
12, 1992.)
Appeal from the Public Utilities Commission of Ohio, No.
90-1315-EL-CSS.
In 1980, appellant, Joseph L. Myers, completed
construction of a detached garage on his residential property
in Columbus, Ohio. Appellant considered two options in
establishing electrical service to the structure: (1)
installing a branch circuit from his home, or (2) having
intervening appellee, Columbus Southern Power Company ("CSP"),
install a separate service line. Appellant elected the latter
option and wired the garage to accommodate the separate
service, prior to requesting installation and without inquiring
as to the rate he would be charged. CSP completed
installation, which consisted of a drop line and meter, on
December 30, 1980.
CSP serves it customers under two broad tariff categories,
residential service and general service. Each of these
categories is further divided into different classifications
according to the usage characteristics of the particular class.
These classifications were developed and approved by the
commission in CSP's previous rate proceeding, and their
corresponding rates were designed to reasonably recover the
costs that each class imposes upon the utility to provide
service.
CSP has billed appellant for service to the garage under
its general service tariff, Schedule GS-1, since the service
was established. Appellant has complained to CSP over the
years that the garage should be billed under the residential
tariff and on these occasions was informed that the residential
rate would be available only if the garage and house were
served by the same meter.

On August 16, 1990, appellant filed a formal complaint
with the Public Utilities Commission of Ohio ("commission")
under R.C. 4905.26, alleging that CSP had overcharged him for
electric service by placing the garage under the general
service tariff. As relief, appellant requested that CSP refund
the alleged overcharges for the past ten years (a total of
$1,134.66) and place the garage under the residential tariff.
Upon hearing, the commission examined CSP's overall tariff
structure and found that the residential service tariff is
available only to "residences" (construing that term to mean "a
place where one lives") and that the general service tariff is
available to all other types of facilities. The commission
reasoned that, because appellant's garage was not used as a
residence, service was properly provided under general service
rates. To support its determination, the commission considered
the results of load surveys submitted by CSP which showed that
electric usage for the garage did not resemble residential
usage patterns, and that appellant's specific use of the garage
was more akin to an auto repair shop (a welder, a one-half ton
electric hoist, an electric battery recharger, and eight
two-tube fluorescent lights) than a home. Thus, by order of
March 7, 1991, the commission dismissed appellant's complaint.
Appellant filed an application for rehearing on April 4, 1991,
which the commission denied by entry issued April 25, 1991.
On May 23, 1991, appellant filed a notice of appeal with
this court. On October 25, 1991, appellant filed a motion for
oral argument in lieu of filing briefs. We denied that request
on December 11, 1991, and now, sua sponte, waive oral argument
and consider this matter on the basis of the briefs submitted.
This cause is before this court upon an appeal as of right.

Joseph L. Myers, pro se.
Lee I. Fisher, Attorney General, James B. Gainer and
William L. Wright, for appellee Public Utilities Commission.
James L. Reeves and F. Mitchell Dutton, for intervening
appellee Columbus Southern Power Company.

Per Curiam. Appellant raises three issues by this
appeal:
(1) Is the language of CSP's tariff ambiguous, requiring
appellant's separately metered garage to be billed at the
residential rate?
(2) Does CSP apply its tariff in a discriminatory manner
by making the residential rate available to a garage when it is
served on the same meter as a house, but not when metered
separately?
(3) Do the procedural due process violations alleged by
appellant require reversal of the commission's order?
For the reasons which follow, we answer each question in
the negative and affirm the commission's order.
I
Appellant argues that the terms of CSP's residential
tariff are ambiguous and, as such, must be construed in his
favor. Saalfield Publishing Co. v. Pub. Util. Comm. (1948),
149 Ohio St. 113, 119, 36 O.O. 468, 471, 77 N.E.2d 914, 917
("'where two descriptions and tariffs are equally appropriate,
the [consumer] is entitled to have applied the one specifying

the lower rates.' United States v. Gulf Refining Co., 268
U.S., 542, 69 L.Ed., 1082, 45 S.Ct., 597.")
The availability portion of CSP's residential tariff
provides that such service is "[a]vailable for residence
service to consumers ***." (Emphasis added.) Further, Rule 4
of CSP's "Rules and Regulations for Electric Service,"
contained in its approved tariff, provides that "[s]chedules
specified as available for residence service are not available
for any other purposes ***."
In construing the tariff at issue in Saalfield, supra, we
noted that "'[t]he meaning and effect of particular [tariff]
provisions are to be ascertained from the words employed and
the connection in which they are used, the subject matter, and
the evident purpose of such provisions.'" Id., 149 Ohio St. at
1177-118, 36 O.O. at 470, 77 N.E.2d at 916-917, quoting 9
American Jurisprudence 526, Section 144.
At issue in this proceeding is whether appellant's garage
can be considered a "residence." Webster's New Third
International Dictionary (1986) 1931, defines the term as "a
building used as a home." The record clearly supports the
commission's finding that appellant's garage was not used for
this purpose. Considering that the common definition of
"residence" as used in CSP's tariff excludes appellant's
garage, and that CSP's Rule 4 prohibits availability of the
residential tariffs to non-residences, we find that the
language of the tariff is not ambiguous and that the
commission's construction of the tariff was reasonable.
II
Appellant next argues that it is discriminatory to charge
his separately metered garage the higher general service rate
when it is used for the same "residential" purposes as a garage
wired through a residence. The commission and CSP argue that
billing appellant's garage under the higher general service
rate is not discriminatory, because the rate is designed to
recover the additional costs the garage imposes on CSP's system.
R.C. 4905.35 provides:
"No public utility shall make or give any undue or
unreasonable preference or advantage to any person, firm,
corporation, or locality, or subject any person, firm,
corporation, or locality to any undue or unreasonable prejudice
or disadvantage." (Emphasis added.)
In Townships of Mahoning Cty. v. Pub. Util. Comm. (1979),
58 Ohio St.2d 40, 44, 12 O.O.3d 45, 47, 388 N.E.2d 739, 742, we
held:
"Absolute uniformity in rates or prices is not required by
statute or case law. A reasonable differential or inequality
of rates may occur where such differential is based upon some
actual or measurable differences in the furnishing of services
to the consumer."
The record in this proceeding establishes that it costs
CSP more to provide service to a separately metered garage than
to provide service to a garage wired through a residence. The
record further establishes that the electric load of
appellant's garage is consistent with general service usage, in
that it imposes high peak demands over short periods of time,
resulting in higher average costs to the utility. The
commission has approved CSP's residential and general service

classifications and their corresponding rates based upon such
cost of service differences. These classifications and rates
are presumed just and reasonable, and appellant bears the
burden of establishing otherwise. AT&T Communications of Ohio,
Inc. v. Pub. Util. Comm. (1990), 51 Ohio St.3d 150, 154, 555
N.E.2d 288, 292-293; Columbus v. Pub. Util. Comm. (1959), 170
Ohio St. 105, 10 O.O.2d 4, 163 N.E.2d 167, paragraph two of the
syllabus; Thomas v. Pub. Util. Comm. (1986), 24 Ohio St.3d 167,
24 OBR 838, 493 N.E.2d 1328; Grossman, Midtown Tel. Answering
Serv., Inc. v. Pub. Util. Comm. (1966), 5 Ohio St.2d 189, 34
O.O.2d 347, 214 N.E.2d 666. Appellant has presented no
probative evidence that the rate differentials complained of
are not based upon valid, cost-causation considerations and,
thus, has failed to show that the general service rate charged
for providing service to his garage is unduly discriminatory.
III
Finally, appellant claims that the commission and the
attorney examiner assigned to hear his case committed various
due process violations. We consider these allegations under
the established principle that this court will not reverse an
order of the commission absent a showing of prejudice by the
party seeking reversal. Cincinnati v. Pub. Util. Comm. (1949),
151 Ohio St. 353, 39 O.O. 188, 86 N.E.2d 10, paragraph six of
the syllabus; Ohio Edison Co. v. Pub. Util. Comm. (1962), 173
Ohio St. 478, 20 O.O.2d 108, 184 N.E.2d 70, paragraph ten of
the syllabus; Akron v. Pub. Util. Comm. (1978), 55 Ohio St.2d
155, 161, 9 O.O.3d 122, 125, 378 N.E.2d 480, 484; Holladay
Corp. v. Pub. Util. Comm. (1980), 61 Ohio St.2d 335, 15 O.O.3d
426, 402 N.E.2d 1175, syllabus.
First, appellant claims that the attorney examiner
assigned to the case engaged in ex parte communications in
violation of R.C. 4903.081.1 Clearly, the purpose of the
statute is to prevent a party from gaining an unfair advantage
over an opposing party through ex parte communications with the
decisionmaker. Here, appellant alleges that he discussed the
merits of the case with the examiner. Appellant provides no
specific support as to the matters discussed or how he was
prejudiced.
Appellant next contends that, during the discussion
referenced above (held October 10, 1990), the attorney examiner
ordered him to refrain from filing additional motions until
after a pre-hearing conference was held on October 25, 1990.
The examiner allegedly indicated that she would instruct CSP to
do the same. At appellant's deposition by CSP on October 11,
1990, the company served appellant with a "Motion to Compel
Entry Upon Land for Purposes of Inspection." Appellant filed a
"Motion to Deny Additional Inspection" on October 15, 1990.
These motions were resolved at the pre-hearing conference held
on October 25, 1990. Appellant provides no indication as to
how these events prejudiced him in this case.
Next, appellant asserts that he was not granted ample
discovery rights. Appellant's allegation stems from a
discovery request served upon CSP on or about November 26,
1990, asking CSP to provide him with various documents dating
to 1978, among other items. Appellant requested CSP to allow
him to inspect these documents at the Columbus Metropolitan
Library at 4:00 p.m. on December 3, 1990, the day before

hearing. On November 30, 1990, CSP mailed its response to
appellant, stating, inter alia, that production of the
documents referred to above would be unduly burdensome, because
it would likely entail an extensive record search within a
short period of time (seven days; the commission's rules
provide for a period of twenty days within which to respond,
Ohio Adm. Code 4901-1-20[C]). CSP further stated that the
place and time of inspection were inconvenient. Appellant did
not file a motion to compel (Ohio Adm. Code 4901-1-23), did not
request a continuance of the hearing scheduled for December 4,
1990, and was given an opportunity to review the documents
which the company was able to have ready in that short period
of time, prior to hearing. Appellant has provided no basis,
either on rehearing or appeal, as to how he was prejudiced by
these events.
Finally, appellant requested in his application for
rehearing that Commissioner Lenworth Smith, Jr. be removed from
this case. Appellant alleges that Commissioner Smith
represented him in a divorce proceeding in 1979, and that
appellant became dissatisfied with Smith's representation and
discharged him. Appellant provides no support that
Commissioner Smith was biased against him. Moreover, although
Commissioner Smith was one of the three commissioners who voted
to dismiss appellant's complaint in the commission's March 7,
1991 opinion and order, his term expired on April 10, 1991,
prior to the commission's consideration of the case on
rehearing. Consequently, appellant's request that Smith be
removed from the case became moot. Again, appellant has failed
to demonstrate prejudice.
Order affirmed.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.
FOOTNOTE
1 R.C. 4903.081 provides:
"After a case has been assigned a formal docket number
neither a member of the public utilities commission nor any
examiner associated with the case shall discuss the merits of
the case with any party or intervenor to the proceeding, unless
all parties and intervenors have been notified and given the
opportunity of being present or a full disclosure of the
communication insofar as it pertains to the subject matter of
the case has been made.
"Failure of any assigned examiner of the public utilities
commission or any commissioner to abide by this section may, at
the discretion of the commissioners, lead to that examiner's or
commissioner's removal from a particular case or appropriate
disciplinary action."