WILLIAM TAYLOR v. JERSEY CENTRAL POWER & LIGHT COMPANY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4028-08T2

WILLIAM TAYLOR,

Petitioner-Appellant,

v.

JERSEY CENTRAL POWER & LIGHT COMPANY,

Respondent-Respondent.

________________________________

February 23, 2011

Submitted: November 15, 2010 Decided:

Before Judges Grall and C.L. Miniman.

On appeal from the New Jersey Board of Public Utilities, Docket No. EC06020077U.

William Taylor, appellant pro se.

Morgan, Lewis & Bockius LLP, attorneys for respondent Jersey Central Power & Light Company (Michael J. Connolly, of counsel and on the brief).

PaulaT. Dow, Attorney General of New Jersey, attorney for respondent New Jersey Board of Public Utilities (Andrea M. Silko witz, Assistant Attorney General, of coun sel; Kerri Kirschbaum, Deputy Attorney General, on the brief).

PER CURIAM

Petitioner William Taylor appeals from an order denying his motion for reconsideration of a final decision and order issued by the New Jersey Board of Public Utilities (BPU) concerning his allegations that respondent Jersey Central Power & Light Company (JCP&L) was supplying low voltage electricity to his residence. We now affirm.

Taylor first contacted JCP&L in April 1998 with a complaint of a sudden increase in electric usage at his residence. Taylor informed JCP&L that a trench had been dug in his front yard, but he did not know who was responsible for it. Between 1999 and 2002, JCP&L responded to several additional complaints, changed the electric meter, and ran multiple tests but did not uncover any voltage problems. JCP&L advised Taylor to hire an electri cian to test his internal wiring. Sometime in or around the spring of 2002, JCP&L suspended collection activities, which had commenced due to Taylor's outstanding account balance, pending an investigation into Taylor's claims of "inadequate electric ity." In or around July 2002, Taylor began withholding all payments.

On November 15, 2002, Taylor sent an informal notice of complaint to JCP&L pertaining to his residence. Taylor asserted that in April 2002, JCP&L twice investigated his complaints of inadequate electricity. He maintained that low voltage affected the operation of his air conditioner, ceiling fans, microwave, and televisions. Taylor urged that, although his complaints resulted in the generation of many work orders, nothing had been done to remedy the electricity problems. He contended that the low voltage produced an "excessive electricity draw" and resulted in over-billing and that his payments to JCP&L were "on hold pending resolution." Taylor's billing dispute with JCP&L spanned several years, and, in March 2005, he filed an informal complaint with the BPU, which was forwarded to JCP&L's engineering department for further review.

On June 8, 2005, JCP&L's Distribution Specialist wrote to Taylor summarizing JCP&L's investigation in response to his com plaints. This letter indicated that JCP&L had worked with Tay lor on several occasions to troubleshoot his situation, perform tests, and discuss its findings. Recording voltmeter data retrieved during April 2005 had not uncovered any voltage irregularities. Further, JCP&L installed a new transformer in May 2005, "increasing the capacity of the unit from 25 [kilo volt-amperes (KVA) to 50 KVA]." A search of JCP&L's database also revealed that no other customers served by the same trans former had experienced any voltage problems. The letter further indicated that JCP&L would conduct another test during July 2005 "when the electric energy demand increases because of the warmer summer weather . . . to insure [sic] that [its] system continues to operate within the proper voltage guidelines." Finally, the letter advised that at the end of July 2005, "bill collection activity will resume."

On December 21, 2005, Taylor submitted a petition for a for mal hearing with the BPU pertaining to these claims. His petition chronicled a history of problems beginning in June 1998 "when [his] electricity bill precipitously more than doubled after 20 years of stability." He alleged that, although JCP&L had "made some equipment changes (after 7 years of complaints)," his low voltage problem persisted. Although he had made pay ments to JCP&L to bring his account current in the past, he con tended that JCP&L failed to address his problems unless he withheld payments.

JCP&L filed an answer on March 10, 2006. It recounted its efforts to resolve Taylor's complaints spanning several years and asserted that Taylor had not made any payments since August 2004. It sought an order by the BPU "acknowledging that [Tay lor] is responsible for payment for electric service . . . and directing [Taylor] to pay . . . the total amount currently past due and owing."

The BPU transferred the matter to the Office of Administra tive Law (OAL) on August 10, 2007, for a hearing and initial disposition as a contested case. A hearing before the Adminis trative Law Judge (ALJ) was held on April 11, 2008. Taylor appeared pro se and testified on his own behalf, and JCP&L called six witnesses. Both parties submitted numerous exhibits. The ALJ noted that there was "an off the record discussion to focus on what [was] being litigated." He indicated that he would hear testimony regarding the billing dispute, Taylor's allegations concerning voltage issues, and the reason why he withheld payment.

Taylor first testified about "the inception of the problem" in April 1998. He presented two timeline documents that he had prepared as exhibits, one of which showed his energy usage and billing from 1993 to the present. He testified that the amount of monthly kilowatt hours (KWH) used doubled starting in April 1998. He had been on vacation for two weeks in April, and "[w]hen [he] came back there [was] a trench perpendicular to the driveway, parallel to the roadway . . . about 50 feet. There were power savers on the house. . . . [S]ervice savers were removed.1 [He] suddenly start[ed] having problems with the air conditioner." He produced a document from April 1999 that reflected a customer serviceperson's note that "[w]e did work on his underground service sometime in late 1997, early 1998." Taylor's neighbor, who is a mechanical engineer, told him that low voltage caused his air conditioner to hum. Taylor called JCP&L, and one of its servicemen inspected the box and told him that "the voltage coming into the house is too low." The ser viceman informed him that there was "nothing he [could] do" and stated, "We're aware of this problem, it's been continuing for sometime and you're going to continue to have this problem until changes are made at the [Stanton] substation." Ibid.

Both the JCP&L serviceman and Taylor's brother, who has a doctorate in electrical engineering, advised Taylor that his home was "at the end of the line," which meant that he received "what's left after everybody else uses it[ ]the voltage, cur rent, the power coming into the house." Subsequently, Taylor lost equipment as a result of low voltage, including two furnace motors, electrical equipment associated with a fan, the refrig erator, the microwave, and his washing machine. This equipment malfunction was "indirect evidence of low voltage in [his] house."

Taylor testified that, when the voltage drops, his air con ditioner does not shut off, and the thermostat does not adjust, as they should when using a power saver. As a result, the air conditioner would run for too long and use too much electricity. He obtained this information from Honeywell Technical and an internet site about line voltage thermostats.

Taylor testified that, prior to December 2005, there were three transformers in the neighborhood that were overloaded and "half the size that they should have been." He introduced a March 21, 2003, document appearing to be an electronic record entitled "Transformer Load Analysis," which showed that a trans former serving six customers had a current size of 25 KVA and that a "change[ ]out" of 50 KVA was required.

Emails from JCP&L dated March 2003 indicated that three transformers would be changed in April due to overloading. Internal correspondence between JCP&L workers in March 2003 indicated that Taylor's "transformer is overloaded and needs to be changed from a 25K to a 50K. This should help increase his voltage." Taylor asserted that JCP&L changed one transformer around that time, but not the transformer serving his house. Taylor continued to complain until JCP&L changed his trans former. Although the size of the transformer was doubled, his problems continued, affecting more of his appliances.

Taylor also testified that pursuant to JCP&L's request, he hired an electrician to investigate the source of his problems in November 1999, September 2001, July 2005, and July 2006. In July 2005, the electrician advised him that the air conditioner was humming because of low voltage, that there was an "accumu lating problem" with its motor, and that Taylor should get a new air conditioner. Taylor admitted on cross-examination that he had not taken any measurements of low voltage. He also admitted that he did not have any reports or documentation of low voltage readings that had been prepared by electricians or anyone else.

On cross, Taylor also stated that he was not aware that a BPU regulation required payment of any non-disputed portion of his bill. However, he maintained that he had overpaid in the past, and as a result, the complete withholding of payments was justified as a set-off against any amount over-billed, claiming that a JCP&L customer serviceperson had recommended that he withhold all payments.

JCP&L disputed Taylor's contentions. Charles Howlett, an advanced business analyst with First Energy Service Company, worked on Taylor's 1999 informal complaint. He testified that his quote from the April 1999 document about service "in late 1997, early 1998" was "just stating what the customer's present ing to us, that's not a statement of fact." He further testi fied that a record search had uncovered nothing to support Taylor's claim that JCP&L had been on his property.

An April 26, 1999, letter to the BPU from Howlett stated that the company's records showed "no record of work done to his service. Since the trench is shared, perhaps the area was dis turbed by another utility." Furthermore, during cross, Taylor admitted that he "recall[ed] people from the company telling [him] that they did not know who did the trenching work." He also admitted that he did not personally know who did the trenching work.

Earl Franz, a senior engineer for First Energy Service Cor poration (First Energy), which is a "support arm" for JCP&L, testified that his job responsibilities concerned meter issues. The meters installed at Taylor's residence tested "within New Jersey's BPU test regulations."

Bobbie Wolfinger, an advanced distribution specialist, who analyzes power and customer complaints involving power outages, testified that Taylor's current balance due was $13,045.47, and that his last payment, which was for $374.27, had been made on August 9, 2004. Additionally, she testified that JCP&L replaced Taylor's transformer "to resolve his situation and address his current complaint." JCP&L upgraded Taylor's transformer "because it's what we told him we would do." However, JCP&L had not found any problems during voltage testing prior to changing the transformer in May 2005. JCP&L investigated and "trouble shooted as best we could," but Taylor's "voltage fell within the limits established by the guidelines with the New Jersey Administrative Code."

Wolfinger also noted a "pattern" that developed with Tay lor. After JCP&L would respond to a complaint, Taylor would not pay his bill and JCP&L would commence collection activity. She asserted that

[o]nce we respond back to the [BPU,] we can take away our collection restraints[,] and we can begin collecting the bill. And once we start doing that, after several months he will usually initiate another complaint[,] which when you have a billing complaint. .. you can't do any further collection activity while that's on.

Although investigators had been to Taylor's "on many occa sions," the first time they found "a confirmed condition" of low voltage was during July 2005. She stated that "during extreme energy demand periods, specifically the summertime, the voltage did fluctuate at his location below the average voltage guidelines." As a result, JCP&L installed voltage regulators.

Lawrence Hayes, a registered professional engineer who supervised work on substation equipment for First Energy, testi fied that the Clinton substation serving Taylor's residence "has been performing very well since its installation" and that he had "found no issues with that transformer." Based on his review of the voltage readings at the substation, he concluded that the transformer had "superior performance" and was operat ing and functioning normally. "[I]f the substation transformer was malfunctioning, there would be many, many complaints."

Mr. Taylor has a misconception that his voltage or his current is being used versus power somehow filtering through others and him being at the end of the line has some power going through other homes. That's not true. All these parallel connected circuits and the current entering a node has to equal what leaves the node. So, basically, it wouldn't be possible for that to happen.

Hayes also testified that the power savers installed by Taylor's neighbor were "sketchy" and "not typically in use for residential customers." JCP&L does not recommend, use, or sell such devices. He also clarified that the term "overloaded" as it relates to the transformers "is a very broad term which could mean many things." He testified that the 25 KVA secondary transformer serving Taylor's home was likely replaced because

the KVA value of the transformer was approaching a place where . . . in our com pany's standard would be best for us to change it because the current capacity wouldn't be where it needs to be. But the voltage, unless it was severely overloaded would not have that much of a bearing. So the term overloading, although it sounds like a detrimental term where it would affect some atrophy[2] like voltage doesn't necessarily mean that.

Francisco Del Valle, a supervisor of engineering for JCP&L whose responsibilities included overseeing the performance of the distribution system and addressing customer complaints, worked on Taylor's March 2005 complaint. After reviewing the complaint history, he installed a voltage report to "record voltage for a set period of time." He noted that voltage read ings had been taken at Taylor's home "every time the customer had complained in the past." Engineers tested JCP&L's side of the system, not the customer's side. JCP&L recorded Taylor's voltage from April 12 to 19, 2005, and the readings did not indicate any low voltage during this period. The acceptable range is between 115 and 125 volts; Taylor's readings fluctuated from 117 to 123, which is "within tariff."

Despite these normal readings, Del Valle wanted to resolve this "very long case with our company" and "to satisfy [himself] that this customer did not have a low voltage condition." He testified that "high consumption" is "normally during the sum mertime," or what is called "the peek [sic] period of energy usage." To see whether Taylor had low voltage during hot summer days, Del Valle requested additional readings between June 23 and July 5, 2005. During this "hot spell," there were some days where the voltage dropped below 115 volts, but these drops dur ing high peak loads were "temporary." Because there were no problems with the substation, JCP&L installed voltage regulators in November 2005 to correct any problems with the voltage fluctuation.

Finally, Gary Hansen, an advanced engineer for JCP&L, tes tified that after one of Taylor's complaints in October or November 2003, he conducted a "beast of burden" voltage test, which showed Taylor's voltage to be within normal standards. He examined other voltage tests conducted during the course of Tay lor's complaints, and the only one with any abnormality was the test conducted during June and July 2005. Hansen testified that "it was the early part of the summer. They were very hot degree days. It's a typical chart that you would see on a hot summer day."

Hansen was not aware of any reports of voltage problems for Taylor's neighbors. Thus, he opined that "[i]f it's a problem at all it's not related to the primary or distribution circuit."

The ALJ issued an Initial Decision on April 23, 2008, in which he determined the following:

Having carefully reviewed the testimony and documents, I CONCLUDE that [Taylor] has not established a claim against [JCP&L]. As noted above, there is no credible evidence there is low[ ]voltage coming into [Tay lor's] residence. [Taylor's] lay testimony regarding alleged low[ ]voltage was far sur passed by the credible expert testimony pro vided by the electrical engineers testifying for [JCP&L]. [JCP&L] did a thorough, exhaustive investigation which demonstrated the meter and substation performing prop erly. The transformer has been enhanced to address any potential overload and the volt age regulator will address any fluctuations. Furthermore, the voltage readings, except for the instance in July 2005 during peak season, show the voltage coming into [Tay lor's] residence to be within the guide lines. Finally, [JCP&L's] experts point out that there is no connection between low[ ] voltage, if any, and higher kilowatts.

Consequently, he recommended dismissal of Taylor's petition after concluding that JCP&L provided proper electric service to Taylor's residence. He recommended that the BPU order Taylor to pay the total amount then currently past due, which was $13,045.47 in March 2008. The Initial Decision indicated that "any party may file written exceptions with the Secretary of the [BPU]" within thirteen days after its mailing on April 28, 2008.

On June 16, 2008, the BPU rendered its Final Decision and adopted the Initial Decision of the ALJ in its entirety. Thereafter, Taylor filed a motion for reconsideration3 in which he outlined alleged factual errors and sought an extension of time to file his exceptions to the Ini tial Decision, which was granted and Taylor then filed his exceptions. JCP&L then filed its answer to Taylor's exceptions on October 27, 2008. On February 11, 2009, the BPU denied Taylor's motion for reconsideration by order reaffirming its June 16, 2008, Final Decision and order.

In its order, the BPU summarized the ALJ's findings and addressed Taylor's numerous exceptions. It found that the exceptions contained Taylor's interpretation of "find ings," which were "presented in no particular order, and . . . grouped indecipherably together." Further, his exceptions contained "unexplained references to the transcript and exhibits." It concluded:

[The BPU] will not modify an [o]rder in the absence of a showing that the [BPU's] action constituted an injustice or that the [BPU] misunderstood or failed to take note of a significant element of fact or law. Here, the [BPU] does not find that the arguments raised by [Taylor] are sufficient to warrant reconsideration or modification. [Taylor's] allegations of error and incorrect conclu sions are, essentially, reiterations of the arguments presented at the hearing, to which ALJ Hurd took note of in making his deci sion. Additionally, many of [Taylor's] exceptions present new evidence or new argu ments that [Taylor] failed to raise at the hearing. Nothing in the substantive argu ments presented now rises to the level to convince the [BPU] that the Initial Decision is fatally flawed or wrong.

This appeal followed.4

"An administrative agency's final quasi-judicial decision will be sustained [on appeal] unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record." In re Herrmann, 192 N.J. 19, 27-28 (2007) (citing Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). Upon review of the factual findings of an administrative agency, a court's "function is not to substitute [its] judgment for that of the agency, particularly when that judgment reflects agency expertise." In re Pub. Serv. Elec. & Gas Co.'s Rate Unbundling, 167 N.J. 377, 384 (citations omit ted), cert. denied, 534 U.S. 813, 122 S. Ct. 37, 151 L. Ed. 2d 11 (2001).

If a hearing has been held before an ALJ, neither an agency head nor a reviewing court should disturb the ALJ's credibility determinations, "made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. N.J. Dep't of Human Servs., 184 N.J. 367, 384 (2005) (citation omitted); see also N.J.A.C. 1:1-18.6(b), (c). Further, a court should "not substitute [its] independent judgment for that of an admin istrative body merely because there exists a 'difference of opinion concerning the evidential persuasiveness of the relevant proofs.'" In re Vineland Chem. Co., 243 N.J. Super. 285, 309 (App. Div.) (citation omitted), certif. denied, 127 N.J. 323 (1990).

In reviewing final agency action of the BPU,

"the [BPU's] rulings are entitled to pre sumptive validity and will not be disturbed unless we find a lack of 'reasonable support in the evidence.'" In re Jersey Cent. Power & Light Co., 85 N.J. 520, 527 (1981) (quot ing In re [N.J.] Power & Light Co., 9 N.J. 498, 509 (1952)); see also N.J.S.A. 48:2-46 (stating that courts may set aside BPU's order, in whole or in part, only "when it clearly appears that there was no evidence before the [BPU] to support the same rea sonably or that the same was without the jurisdiction of the [BPU]").

[In re Pub. Serv. Elec. & Gas Co.'s Rate Unbundling, supra, 167 N.J. at 385.]

Applying this limited scope of review, after carefully con sidering the record in light of the written arguments advanced by the parties, we conclude that the findings by the BPU are supported by the record and the issues presented by Taylor are without sufficient merit to warrant discussion in this opin ion, Rule 2:11-3(e)(1)(D), (E), and we affirm substantially for the reasons expressed by the BPU in its order of February 11, 2009, denying Taylor's motion for reconsideration. The findings and conclusions of the BPU are neither "arbitrary, capricious, or unreasonable, [n]or . . . lack[] fair support in the record." In re Herrmann, supra, 192 N.J. at 27-28.

1 Later testimony clarified that power savers, not service savers had been removed.

2 This word appears in the transcript; it is unclear whether it is a transcription error or the word used by the witness.

3 Taylor's submission was entitled, "Request for Rescission and Reinstatement." The BPU considered this request as a motion for reconsideration pursuant to N.J.A.C. 14:1-8.6.

4 While Taylor s appeal is outside the forty-five day limit, neither respondent has challenged its timeliness. Because it is within the thirty-day period during which we may grant extensions of the time for appeal, Rule 2:4-4(a), we will consider the merits.