In re Complaint of Toliver v. Vectren Energy Delivery of Ohio, Inc. (Slip Opinion)

[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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January Term, 2015

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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