Spicer v. Baltimore Gas & Electric Co.

SMITH, J. Appellant, Calvin B. Spicer, is a former customer of Baltimore Gas and Electric Company (“BGE”) and is proceeding pro se. 1 The appellees are BGE and the Maryland Public Service Commission (“the Commission”). Spicer appeals a judgment of the Circuit Court for Baltimore City, which affirmed a decision of the Commission approving the termination of BGE’s services to Spicer’s rented home. Spicer asks us to determine whether the Commission erred when it concluded that BGE properly billed him for services for months during which he was not a customer of record, and properly cut off his service when he failed to pay those bills. It appears from the record that the Commission failed to conduct the proceedings necessary to assess the propriety of ¹⁵⁵ BGE’s actions.

Therefore, we shall vacate the judgment of the trial court and remand the case to that court with instructions to vacate the decision of the Commission and to remand the case to the Commission for appropriate proceedings. FACTS The record before this Court is, at best, wanting. Little is provided to confirm the factual allegations set forth by the parties in their briefs. We set forth the facts that can be gleaned from the record.

Spicer is a 61-year-old man who suffers from a permanent disability—presumably schizophrenia. He apparently receives assistance from a friend, James Reid. Reid and his wife Linda, from whom Reid is now separated or divorced, own a house at 5517 Haddon Avenue in Baltimore. They had been renting the house to an organization known as Seniors United of America, Inc. Nothing in the record explains the nature of that corporation.

Two principals of Seniors United, Charles Lawyer and Reginald Spence, lived in and operated the business from the Haddon Avenue house. Gas and electric service to 5517 Haddon Avenue was originally placed in Linda Reid’s name. At some point, at the Reids’ request, the service was transferred to Charles Lawyer’s name. Lawyer failed to pay any of BGE’s bills.

In March of 2001, an application was made to have the gas and electric services transferred to Spicer’s name. BGE contacted Linda Reid in order to verity that Spicer, and not Lawyer, was actually residing in the house. Mrs. Reid provided BGE with a sublease between Seniors United and Spicer. The sublease was dated September 1, 2000, and indicated that the subtenancy was to begin on October 1, 2000.

It provided that, in exchange for $800.00 a month in rent, Spicer was entitled to “one rooming unit [with] complete use of the house plus board [and] keep services.” A handwritten amendment to the sublease, initialed by Spicer and dated March 13, 2001, stated that Spicer was “responsible for the payment of all ¹⁵⁶ utilities and services as amended forward from October 19, 2000[and] subtracted from rents due monthly.” Upon receiving the copy of the lease, BGE billed Spicer for a security deposit and for the services provided to 5517 Haddon Avenue from October 19, 2000. Spicer apparently responded by telephoning a BGE representative and complaining that the bill was in error. 2 According to Spicer, the representative informed him that BGE had determined that he was responsible for the bill and that if he did not pay it his service would be terminated. Spicer then filed an “Inquiry/Dispute Form” with the Commission. He contended that his BGE service did not begin until March of 2001, and that Charles Lawyer was responsible for the bill up until that point.

An employee of the Commission’s Office of External Relations (“OER”) agreed with BGE that the bill was accurate. 3 In a letter to Spicer, the employee explained: I received notification from the Company that your inquiry/complaint has been responded to by BGE’s credit Department. BGE records do show that you applied for service on March 30, 2001. As stated in your complaint, there was an outstanding bill for this address for Mr. Charles Lawyer, and a turnoff notice on the past due bill. BGE needed to confirm that you were indeed the new tenant before the service could be transferred into your name.

Therefore BGE contacted the owner of the property, Linda Reid, who advised BGE that you had been the tenant of record since October 1, 2000. A copy of the signed lease was forwarded to BGE by the property owner. The lease was signed on September 1, 2000 and was effective as of October 1, 2000. The document contained an amendment that Mr. Spicer was to be responsible for utilities as of October 19, 2000, and the amendment was initialed by you.

Based upon this, the billing for the ¹⁵⁷ previous tenant, Mr. Lawyer, was amended to stop his responsibility as of October 19, 2000, and your service was noted to begin as of that date. Spicer filed a request for further review by the Commission, to which he attached a “corrected” lease. 4 The corrected lease indicated that Spicer’s subtenancy at 5517 Haddon Avenue began on October 1, 2000, but that his responsibility for utility payments did not begin until March 19, 2001. The OER Assistant Manager reviewed the matter and determined that the earlier decision was correct. Spicer then appealed the decision by filing a formal complaint with the Commission. 5 Again, the Commission responded to the effect that, based on the information it had received from BGE, it believed that the bill was correct.

Spicer filed a petition for judicial review in the Circuit Court for Baltimore City, naming both BGE and the Commission as respondents. A hearing was held at which Spicer attempted to offer into evidence three notarized letters'—one signed by Linda Reid, one signed by Reginald Spence, and one signed by Philip Street and Moziah Saleem. In her letter, Linda Reid asserted that she had “nothing to do with” the property at 5517 Avenue and that she made that clear to the BGE representative who called her regarding Spicer. She further asserted that she did know that James Reid and Spicer lived at a different address through February of 2001.

Reginald Spence asserted in his letter that he and Charles Lawyer were responsible for the bill in question and that he would “accept full responsibility for the entire bill.” Finally, Philip Street and Moziah Saleem asserted that they had lived with James Reid and Spicer at a different address from January of 2000 until February of 2001. BGE agreed to postpone the hearing in order to conduct an investigation into whether it could collect from Reginald Spence. The hearing was therefore postponed for four months. ¹⁵⁸ When the hearing resumed, BGE reported that Spence had indeed agreed to a payment plan but had thereafter failed to make any payments. BGE indicated it was not willing to release Spicer from liability for the bill.

The Commission asserted that, in any event, the controversy was moot. It pointed out that BGE service to 5517 Haddon Avenue had been terminated in December of 2001, after Spicer had failed to pay his security deposit or any of the bills from March of 2001 through December of 2001—a period during which he was undisputedly a tenant at the property. The trial court reluctantly affirmed the Commission’s decision, stating: ... [T]he circumstances before this Court placet ] this Court in the position of an appeal from the agency to this Court. In so doing it becomes a question of whether or not there is substantial basis for the agency or Commission’s determination.

What is being approached here is suggesting facts and circumstances and asking this Court to superimpose himself as to the agency in making a factual determination as to responsibility. This Court, in an administrative appeal, is not and cannot be the trier of fact, or fact finder. It is that of the agency. The agency has made a determination.

Based on the record before this Court, ... under the circumstances the Court must conclude that there is substantial evidence to support the Commission finding or agency determination.... Based on the evidence before this Court and applicable law, this Court must find itself in an uncomfortable position, but must follow the law. The administrative decision is hereby affirmed. ISSUE Spicer now argues, in essence, that the trial court erred in affirming the Commission’s decision in that, inter alia, the Commission’s decision was “made upon unlawful procedure” and was “unsupported by substantial evidence.” We agree. ¹⁵⁹ STANDARD OF REVIEW The standard of judicial review applicable to decisions of the Commission “is consistent with the standard of review applicable to all administrative agencies.” Office of People’s Counsel v. Maryland Pub.

Serv. Comm’n, 355 Md. 1, 15 , 733 A.2d 996 (1999). As this Court has summarized: We review the decision of an administrative agency to determine if it is “ ‘in accordance with the law or whether it is arbitrary, illegal, and capricious.’ ” ... We are “ ‘limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.’ ” ...

In applying the substantial evidence test, we must decide “ ‘ “whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.” ’” ... When reviewing the agency’s legal conclusions, “we may substitute our judgment for that of the agency if there are erroneous conclusions of law.” ... Rideout v. Dep’t of Pub. Safety and Corr.

Serv., 149 Md.App. 649, 656 , 818 A.2d 250, 254 (2003) (citations omitted). DISCUSSION The Commission asserts that this appeal is moot because it was proper for BGE to turn off service to Spicer for non-payment of the undisputed portion of his bill. Spicer does not dispute that he applied for gas and electric services in March of 2001 and has not paid any amount for services since that time. However, BGE acknowledges that the decision to terminate services to Spicer is due, at least in part, to the fact that Spicer has not paid bills for services prior to March of 2001.

Thus, Spicer is correct to point out that this case is not moot because the turn-off notice clearly reflected arrears for services provided before March of 2001. Whether or not Spicer owes money for services prior to March of 2001 is in dispute. Thus, the Commission’s reliance on Surratt v. Chesapeake & Potomac Tel. Co., 156 Md. 510, 514 , 144 A. 495, 496-97 (1929), ¹⁶⁰ for the proposition that BGE can terminate services for undisputed bills, is misplaced.

Rather, as the Court of Appeals in Surratt stated, “the right to discontinue the service for non-payment of recent and just bills ‘ “cannot be exercised so as to coerce the consumer into paying a bill which is unjust or which the consumer in good faith and with a show of reason disputes.” ’ ” Id. at 514 , 144 A. at 497 (citations omitted). Spicer has shown that his services were terminated because he has not paid this disputed bill. Thus, this controversy is not moot. In accordance with § 7-305 of the Public Utilities Companies Article, “[a] gas company or electric company may bill its customers for gas, electricity, or any other service it renders only on the basis of the net total cost of the service under the applicable rate that is filed for that service.” Md. Code (1998), § 7-305(a) of the Pub.

Util. Co. Article. Regulations promulgated by the Commission provide that “ ‘Customer’ means a person receiving service from a utility, in whose name the account is maintained, for use in the premises.” Md.Code Regs. (“COMAR”) tit. 20, § 31.01.02(2). “Customer” is also defined in the regulations as “any person, association, partnership, corporation, or governmental agency who has applied for utility service, or in whose name the utility service account is maintained.” COMAR 20.32.01.02B(2).

The parties do not dispute that during the period in question, prior to March of 2001, the BGE account for 5517 Haddon Avenue was not in Spicer’s name. Thus, Spicer’s alleged responsibility for the bills during that time cannot be based on any contractual obligation to BGE. BGE concluded that Spicer could be held liable for the bill based on evidence that he resided in the house during the period in question. The Court of Appeals has made clear that the Commission is authorized to resolve billing disputes such as the one in the instant case, where the termination of services is a possible result.

See Everett v. Baltimore Gas & Elec. Co., 307 Md. 286 , 513 A.2d 882 (1986), overruled on other grounds by Coleman v. Anne Arundel County Police Dep’t, 369 Md. 108 , ¹⁶¹ 797 A.2d 770 (2002). The Commission’s own regulations set forth mandatory guidelines for resolving such disputes. They direct, in pertinent part: F. After receipt of an inquiry, [the Office of External Regulations] shall initiate a review and an investigation to resolve the matter that includes but is not limited to: (1) Obtaining information from the utility and