In re Complaint of Toliver v. Vectren Energy Delivery of Ohio, Inc. (Slip Opinion) , 145 Ohio St. 3d 346 ( 2015 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as In
re Complaint of Toliver v. Vectren Energy Delivery of Ohio, Inc., Slip Opinion No. 2015-Ohio-
5055.]
NOTICE
This slip opinion is subject to formal revision before it is published in
an advance sheet of the Ohio Official Reports. Readers are requested
to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
65 South Front Street, Columbus, Ohio 43215, of any typographical or
other formal errors in the opinion, in order that corrections may be
made before the opinion is published.
SLIP OPINION NO. 2015-OHIO-5055
IN RE COMPLAINT OF TOLIVER, APPELLANT, v. VECTREN ENERGY DELIVERY
OF OHIO, INC., INTERVENING APPELLEE; PUBLIC UTILITIES COMMISSION,
APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as In re Complaint of Toliver v. Vectren Energy Delivery of Ohio,
Inc., Slip Opinion No. 2015-Ohio-5055.]
Public utilities—Percentage of Income Payment Plan—Customer pays fixed
percentage of monthly income for utility service rather than actual cost of
energy consumption—Customer who voluntarily left program, maintained
service with the utility, and reenrolled in program within 12 months must
make up missed program monthly installment payments, less any monthly
payments made at standard rate—Commission orders affirmed.
(No. 2013-1807—Submitted October 13, 2015—Decided December 8, 2015.)
APPEAL from the Public Utilities Commission of Ohio, No. 12-3234-GA-CSS.
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SUPREME COURT OF OHIO
FRENCH, J.
{¶ 1} Appellant, Nancy Toliver, is a natural-gas customer of intervening
appellee, Vectren Energy Delivery of Ohio, Inc. In 2012, she participated in a
program called the Percentage of Income Payment Plan, commonly referred to as
“PIPP.”1 PIPP is an energy program that provides assistance to low-income
residential customers who are unable to pay the full price of natural-gas or electric
service. See Montgomery Cty. Bd. of Commrs. v. Pub. Util. Comm., 28 Ohio
St.3d 171, 174, 503 N.E.2d 167 (1986). As the program name implies, most PIPP
customers pay a fixed percentage of their monthly income instead of the actual
cost of service. Ohio Adm.Code 4901:1-18-13(A)(1).
{¶ 2} In April 2012, Toliver voluntarily left PIPP, but she continued to
receive gas service from Vectren at its standard rate. Toliver later applied to
reenroll in PIPP, and she was reinstated seven months after her departure. Upon
her reenrollment, Vectren informed Toliver that she had to pay the difference
between the charges she paid during the time she was not in the program and the
monthly PIPP installment payments that would have been due had she remained
in PIPP.
{¶ 3} Toliver filed a pro se complaint with appellee, Public Utilities
Commission, pursuant to R.C. 4905.26, alleging that Vectren’s attempt to charge
her for the missed PIPP installments was unlawful and unreasonable. The
commission found in favor of Vectren and dismissed the complaint. See In re
Complaint of Nancy S. Toliver v. Vectren Energy Delivery of Ohio, Inc., Pub. Util.
Comm. No. 12-3234-GA-CSS (July 17, 2013).
1
This program is currently referred to as “PIPP Plus.” See Ohio Adm.Code 4901:1-17-01(G).
The name was changed to distinguish the current program from the prior program. Any difference
between the programs has no bearing on this appeal, so for ease of reference we refer to the
program as PIPP.
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{¶ 4} After the commission issued two separate entries denying rehearing,
Toliver filed this appeal, raising five propositions of law. Toliver has failed to
demonstrate error. Therefore, we affirm the commission’s orders.
Facts and Procedural Background
{¶ 5} The commission created PIPP in 1983 to assist low-income utility
customers threatened with disconnection due to their inability to pay the high
costs of utility service during the winter months. See Montgomery Cty. Bd. of
Commrs., 28 Ohio St. 3d at 174, 503 N.E.2d 167. Under PIPP, most customers
pay a fixed percentage of their monthly income rather than the actual cost of their
energy consumption. Id. at 172; Ohio Adm.Code 4901:1-18-13(A)(1). If PIPP
customers pay their monthly installments on time, they receive credits toward
their unpaid energy costs. Ohio Adm.Code 4901:1-18-14(A)(1). Utility
customers who do not participate in PIPP collectively bear the responsibility of
covering any remaining difference between the monthly installment and the actual
cost of service for PIPP customers. See In re Commission’s Review of Chapters
4901:1-17 and 4901:1-18, Pub. Util. Comm. No. 08-723-AU-ORD, 2008 Ohio
PUC Lexis 769, *125 (Dec. 17, 2008).
{¶ 6} Colder weather generally means higher energy bills, so PIPP
customers can save substantially on energy costs during the winter months.
Conversely, when the weather is warmer, the monthly PIPP payment may exceed
the actual cost of service. But no matter whether they pay more or less than the
actual cost of service, PIPP customers must make their full monthly PIPP
payment to remain eligible for the program. Ohio Adm.Code 4901:1-18-
12(D)(2).
{¶ 7} Toliver testified at the commission’s evidentiary hearing that she
first enrolled in PIPP in 2010 and that in April 2012, she was about $180 behind
on her PIPP installments. To stay on PIPP, she had to make up the missed
payments. Rather than make the payments, Toliver decided to leave the program
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and pay her actual monthly charges. Vectren implemented Toliver’s decision, but
it advised her that if she reenrolled in PIPP within the next 12 months, she would
have to make up the missed PIPP installments, less any actual monthly payments
made at the standard rate.
{¶ 8} In September 2012, Toliver applied to reenroll in PIPP. In
November 2012, seven months after she voluntarily left PIPP, she was reinstated
into the program. Vectren again told Toliver that under the commission’s rules,
she had to make up for PIPP payments that would have been due during the seven
months she was not in PIPP. In addition, the commission’s Service Monitoring
and Enforcement Department informed Toliver that she could not exit and reenter
the program to avoid monthly payments. When Vectren attempted to collect
those payments, Toliver filed a pro se complaint with the commission.
{¶ 9} Toliver’s complaint alleged that Vectren had overcharged for its
services upon her return to PIPP. She further alleged that Vectren was forcing her
off PIPP, even though she is income-eligible, and was discriminating against her
as a low-income customer.
{¶ 10} After an evidentiary hearing and briefing, the commission found
that Toliver had not carried her burden of showing that Vectren had misapplied
the commission’s rules for administering the natural-gas PIPP program.
According to the commission, its rules require customers who enroll in PIPP to
remain enrolled year-round. The commission dismissed the complaint, finding
that Toliver had to make up any missed PIPP payments upon reinstatement to the
program.
{¶ 11} The commission’s order further directed Toliver to file a letter with
it by July 31, 2013, stating whether she wished to continue to participate in PIPP.
If Toliver wished to continue in the program, the commission ordered that she
submit the missed PIPP payments to Vectren by September 20, 2013. If Toliver
elected to terminate her PIPP participation or failed to notify the commission of
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her decision by July 31, Vectren was instructed to reverse the PIPP benefits that
she had received since her reenrollment.
{¶ 12} Toliver failed to notify the commission of her choice by July 31.
In the commission’s first entry denying rehearing, it terminated her participation
in PIPP and reversed her accumulated PIPP benefits, which at that point
amounted to $130.74.
{¶ 13} Following the commission’s second entry denying rehearing,
Toliver filed this appeal challenging the commission’s orders.
Standard of Review
{¶ 14} “R.C. 4903.13 provides that a [Public Utilities Commission] order
shall be reversed, vacated, or modified by this court only when, upon
consideration of the record, the court finds the order to be unlawful or
unreasonable.” Constellation NewEnergy, Inc. v. Pub. Util. Comm., 104 Ohio
St.3d 530, 2004-Ohio-6767, 820 N.E.2d 885, ¶ 50. We will not reverse or modify
a commission decision as to questions of fact where the record contains sufficient
probative evidence to show that the commission’s decision was not manifestly
against the weight of the evidence and was not so clearly unsupported by the
record as to show misapprehension, mistake or willful disregard of duty.
Monongahela Power Co. v. Pub. Util. Comm., 104 Ohio St. 3d 571, 2004-Ohio-
6896, 820 N.E.2d 921, ¶ 29. The appellant bears the burden of demonstrating that
the commission’s decision is against the manifest weight of the evidence or is
clearly unsupported by the record. Id.
{¶ 15} Although this court has “complete and independent power of
review as to all questions of law” in appeals from the commission, Ohio Edison
Co. v. Pub. Util. Comm., 78 Ohio St. 3d 466, 469, 678 N.E.2d 922 (1997), we may
rely on the expertise of a state agency in interpreting a law where “highly
specialized issues” are involved and “where agency expertise would, therefore, be
of assistance in discerning the presumed intent of our General Assembly,”
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Consumers’ Counsel v. Pub. Util. Comm., 58 Ohio St. 2d 108, 110, 388 N.E.2d
1370 (1979).
Discussion
{¶ 16} Toliver raises five propositions of law, each of which we restate
and address below. Because Toliver has not carried her burden of demonstrating
error on appeal, we affirm the commission’s determination.
I. Proposition of Law No. 1: The Home Energy Assistance Program
(“HEAP”) requires an application to apply for both PIPP and the
Home Weatherization Assistance Program (“HWAP”) in order to
receive the credit on a customer account
{¶ 17} In her first proposition of law, Toliver refers to the circumstances
surrounding her reenrollment in PIPP after she elected to leave the program in
April 2012. In the summer of 2012, Toliver filed an application for HEAP
assistance.2 Toliver also requested through her HEAP application to reenroll in
PIPP. She was subsequently approved for both programs.
{¶ 18} After the commission dismissed Toliver’s complaint, she argued
that it had failed to recognize that she qualified for PIPP under the income
guidelines and also had failed to acknowledge that as a PIPP customer she is
required to apply for HEAP and HWAP.3 The commission denied her application
for rehearing and rejected her argument, finding that she was not a PIPP
2
HEAP is a federally funded program administered by the Ohio Development Services Agency.
HEAP is designed to help low-income Ohio residents meet the high cost of winter heating bills.
See http://www.puco.ohio.gov/puco/index.cfm/be-informed/consumer-topics/energy-assistance-
programs-help-with-paying-your-utility-bills/#HEAP (accessed Nov. 19, 2015).
3
HWAP is a federally funded low-income residential-energy-efficiency program. The program
provides services that are designed to reduce energy use. Services that are available through
HWAP include energy audits, insulation, heating-system repairs and replacements, and health-
and-safety inspections. See http://www.puco.ohio.gov/puco/index.cfm/be-informed/consumer-
topics/energy-assistance-programs-help-with-paying-your-utility-bills/#HWAP (accessed Nov. 19,
2015).
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participant when she applied for HEAP and that HEAP assistance is not
contingent on PIPP participation.
{¶ 19} On appeal, Toliver alleges that the commission erred when it
concluded that HEAP assistance is not contingent on PIPP participation.
According to Toliver, the commission failed to consider that she completed an
application for HEAP assistance in August 2012 and was subsequently reenrolled
in PIPP. But even if this is true, it is not relevant to the issue on appeal. Neither
Vectren nor the commission disputes how Toliver reenrolled in PIPP or that she
qualifies for PIPP assistance. Indeed, the question before us does not concern her
HEAP application at all. Rather, the question here is whether Toliver must pay
any missed monthly PIPP installments upon reenrollment in that program.
Toliver’s first proposition of law does not address this question, so we reject it on
that ground. See In re Complaint of Wilkes v. Ohio Edison Co., 131 Ohio St. 3d
252, 2012-Ohio-609, 963 N.E.2d 1285, ¶ 10 (failure to explain argument and cite
to relevant legal authority is ground to reject argument on appeal).
II. Proposition of Law No. 2: The commission’s order and rehearing
entries are inconsistent with its Energy Assistance Resource Guide
and violate Ohio Adm.Code 4901:1-18-12(D)(2)(b); the commission
also lacks jurisdiction to reverse incentive credit already paid to a
PIPP participant
{¶ 20} In her second proposition of law, Toliver raises several arguments,
most of which are unsupported and underdeveloped. Her arguments primarily
center on a single contention; namely, that she is not required to reimburse
Vectren for any past due monthly PIPP installments because her actual account
balance is less than her missed PIPP payments. After review, we conclude that
Toliver’s arguments lack merit.
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A. Ohio Adm.Code 4901:1-18-12(D)(2)(b) is not applicable
{¶ 21} Toliver first contends that the commission violated Ohio
Adm.Code 4901:1-18-12(D)(2)(b), which, as quoted in her brief, provides that the
PIPP payment amount due “ ‘shall not exceed the amount of the customer’s
arrearage.’ ” Toliver has misconstrued this rule.
{¶ 22} Toliver quotes only part of the second sentence of Ohio Adm.Code
4901:1-18-12(D)(2)(b), leaving out the first sentence and the last part of the
second. The first sentence defines missed PIPP payments to include “[a]ny
missed payments, including [PIPP] payments which would have been due for the
months the customer is disconnected from gas utility service.” In addition to the
part quoted by Toliver, the second sentence goes on to provide that PIPP
payments missed while the customer was disconnected “shall be paid prior to the
restoration of utility service.” In context, Ohio Adm.Code 4901:1-18-12(D)(2)(b)
applies only to customers who have missed PIPP payments while “disconnected
from gas utility service.”
{¶ 23} Vectren, however, never disconnected Toliver’s gas service.
Rather, Toliver voluntarily left the PIPP program in April 2012, but she remained
a Vectren customer. The rule she cites simply does not apply to her
circumstances.
B. The commission’s order and rehearing entries are consistent
with the Energy Assistance Resource Guide
{¶ 24} Toliver also argues that the commission’s decision is inconsistent
with its Energy Assistance Resource Guide, which is a publication of the
commission and the Ohio Development Services Agency that provides a
layperson’s explanation of the PIPP program in a question-and-answer format.
Toliver claims that the answer to question No. 15 of the 2012-2013 Resource
Guide requires that a PIPP customer who is in default pay only up to the amount
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in arrears. According to Toliver, this means that she need not pay her missed
PIPP installments because she has an account balance of zero and is not in arrears.
{¶ 25} Toliver again cites a provision that is not applicable to her
situation. This part of the Resource Guide addresses the situation in which a PIPP
customer has been disconnected for nonpayment. Toliver was not disconnected
from service, so this provision is not relevant.
{¶ 26} A different provision of the Resource Guide addresses her exact
situation, however. According to the answer to question No. 14 of the Resource
Guide, if a customer leaves PIPP, maintains service from the utility, and then
chooses to reenroll at a later time, then that “customer must pay the difference
between the amount of [PIPP] installments and customer payments before re-
joining [PIPP].” Likewise, according to the answer to question No. 23 of the
Resource Guide, when a PIPP customer’s account balance is less than the PIPP
default balance, the customer is “required to pay the [PIPP] default amount” in
order to remain on PIPP and avoid disconnection. In sum, the Resource Guide
confirms that customers who voluntarily depart from PIPP and reenroll in the
program must make up the missed PIPP installments, less any actual payments.
C. Toliver’s reliance on Waterville Gas Co. v. Mason is misplaced
{¶ 27} Toliver cites Waterville Gas Co. v. Mason, 93 Ohio App. 3d 798,
639 N.E.2d 1240 (6th Dist.1994), to support her appeal. In Waterville Gas, the
gas utility instituted a collection action to recover an arrearage accrued by a PIPP
customer. The appellate court held that the utility could not recover the arrearage
from a PIPP customer who was enrolled in PIPP and was in strict compliance
with the program’s requirements. Id. at 805-807.
{¶ 28} Waterville Gas is not on point for two reasons. First, unlike the
PIPP customer in Waterville Gas, Toliver did not remain enrolled in PIPP, having
voluntarily left the program for seven months from April to November 2012.
Second, the utility in Waterville Gas was attempting to recover arrearages—the
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difference between the customer’s actual cost of service and the PIPP monthly
installments. See id. at 805. In contrast, Vectren sought to collect missed PIPP
installments, which fall outside the definition of “arrearages” stated in Ohio
Adm.Code 4901:1-18-01(B).
D. Toliver’s remaining claims under her second proposition
of law are not sufficiently developed to demonstrate error
{¶ 29} Toliver includes two final arguments under her second proposition
of law. First, she contends that the commission lacks jurisdiction to enforce
compliance with PIPP requirements and, specifically, to reverse her incentive
credit of $130.74. According to Toliver, the Ohio Development Services Agency
has jurisdiction to determine those issues. Second, she asserts that PIPP is
“discriminatory against low income customer[s] and must be considered a subtle
type of peonage.”
{¶ 30} Toliver bears the burden of demonstrating reversible error on
appeal. R.C. 4903.13. Yet she fails to develop these arguments beyond
conclusory statements. Unsupported legal conclusions do not demonstrate error.
See Util. Serv. Partners, Inc. v. Pub. Util. Comm., 124 Ohio St. 3d 284, 2009-
Ohio-6764, 921 N.E.2d 1038, ¶ 39; In re Application of Columbus S. Power Co.,
129 Ohio St. 3d 271, 2011-Ohio-2638, 951 N.E.2d 751, ¶ 14-17. Toliver has done
little more than register her disagreement with the commission’s orders; that
disagreement is insufficient to establish reversible error.
III. Proposition of Law No. 3: The commission erred when it failed to
grant Toliver’s motion to strike the testimony of Vectren’s expert
witness
{¶ 31} In proposition of law No. 3, Toliver argues that the commission
erred when it failed to grant her motion to strike the testimony of Vectren witness
Sherri Bell. Toliver contends that the commission permitted Bell to testify as an
expert witness without complying with certain rules applicable to expert
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witnesses. See Ohio Adm.Code 4901-1-26(A)(1)(b), 4901-1-26(A)(3), and 4901-
1-29(h); Evid.R. 701 and 702; and Civ.R. 26. Toliver also maintains that the
commission erred when it failed to sanction Vectren for violating certain rules.
{¶ 32} The commission, however, did not qualify Bell as an expert
witness. The hearing examiner expressly found that Bell’s testimony was not
expert testimony. Therefore, any rules regarding expert testimony are
inapplicable. We reject Toliver’s claim regarding sanctions for the same reason.
{¶ 33} Toliver further argues that the commission failed to follow Ohio
Adm.Code 4901-1-26, which she claims requires the commission to hold a
pretrial conference to establish discovery dates and to disclose lay and expert
witnesses. Contrary to Toliver’s claim, the rule does not require prehearing
conferences. Ohio Adm.Code 4901-1-26(A) provides that the commission or an
attorney examiner “may, upon motion of any party or upon their own motion,
hold one or more prehearing conferences.” Thus, prehearing conferences are
discretionary, not mandatory.
{¶ 34} In sum, the third proposition of law articulates no sound basis for
reversal. We therefore reject it.
IV. Proposition of Law No. 4: The commission abused its discretion when
it granted Vectren’s motion to strike Toliver’s posthearing exhibits
{¶ 35} In her fourth proposition of law, Toliver argues that the
commission erred when it granted Vectren’s motion to strike several exhibits that
she attached to her posthearing brief. The commission found that to allow Toliver
to introduce this evidence after the hearing would deny Vectren its right to cross-
examine Toliver on the documents or to introduce evidence to rebut the
information in the documents.
{¶ 36} Toliver’s only argument against striking her exhibits is that she
acted in good faith by sending this evidence to Vectren before she submitted the
evidence to the commission. But this fact does not cure the problems created by
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submitting the exhibits after the hearing had ended, so Toliver has not shown an
abuse of discretion. The commission correctly granted the company’s motion to
strike. See Columbus Bd. of Edn. v. Franklin Cty. Bd. of Revision, 76 Ohio St. 3d
13, 16-17, 665 N.E.2d 1098 (1996) (documents that “were not part of the original
record * * * and were submitted after the [Board of Tax Appeals] hearing” had to
be “disregarded by the BTA”). Accordingly, we deny her fourth proposition of
law.
V. Proposition of Law No. 5: Vectren’s counsel violated Ohio Adm.Code
4901-1-08(F)
{¶ 37} In her fifth and final proposition of law, Toliver alleges that
Vectren’s counsel failed to properly withdraw and substitute new counsel. See
former Ohio Adm.Code 4901-1-08(F) (now Ohio Adm.Code 4901-1-08(E)).4 We
disagree. That provision simply requires that “[w]here a party is represented by
more than one attorney, one of the attorneys shall be designated as the ‘counsel of
record,’ who shall have principal responsibility for the party’s participation in the
proceeding.” A review of Vectren’s pleadings filed with the commission reflects
that counsel complied with this rule. The same three attorneys appeared on
Vectren’s pleadings, and one was designated “counsel of record.” That is all that
the rule requires. The fifth proposition of law therefore lacks merit.
Conclusion
{¶ 38} Toliver bears the burden of demonstrating that the commission’s
orders were unreasonable or unlawful. R.C. 4903.13; Monongahela Power Co.,
104 Ohio St. 3d 571, 2004-Ohio-6896, 820 N.E.2d 921, at ¶ 29. She has not
carried that burden in this appeal. Therefore, we affirm the commission’s orders.
Orders affirmed.
4
Ohio Adm.Code 4901-1-08 was revised effective June 15, 2014. Former Ohio Adm.Code 4901-
1-08(F) is now Ohio Adm.Code 4901-1-08(E), but the wording is identical.
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O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY, and
O’NEILL, JJ., concur.
_________________
Nancy S. Toliver, pro se.
Michael DeWine, Attorney General, William L. Wright, Section Chief,
and Thomas G. Lindgren, Assistant Attorney General, for appellee, Public
Utilities Commission of Ohio.
Whitt Sturtevant, L.L.P., Mark A. Whitt, and Andrew J. Campbell, for
intervening appellee, Vectren Energy Delivery of Ohio, Inc.
_________________
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