Plaintiff: Edward R. McCormick, III, Esq.
Defendant: Casey Lee, Esq.
this Court is Linda Mernick and Ken Mernick's
(collectively, the Mernicks) appeal of the State of Rhode
Island Division of Public Utilities and Carriers' (DPUC)
Informal Review Decision (Decision). The DPUC dismissed the
Mernicks' request for an Informal Review on the basis
that the Mernicks failed to appear at the Informal Review,
which was heard on December 18, 2017. The Mernicks now appeal
this Decision on the grounds that notice was inadequate, and
the Decision failed to make any such findings of fact.
Jurisdiction is pursuant to G.L. 1956 § 42-35-15.
Mernicks are the holders of the National Grid account for
residential gas at 10 Hans Street, Cranston, RI 02910.
(Appellee's Reply Brief (Reply Br.) Ex. A.) The Mernicks
received a letter from National Grid dated June 15, 2017,
indicating that the results of a recent investigation
demonstrated that "unauthorized interference and/or
unmetered use of gas have resulted in a loss of revenue to
National Grid." Id. Accordingly, National Grid
charged the Mernicks for the use of gas from October 14, 2005
until August 2, 2016 for a total amount of $4897.19. (Reply
Br. Ex. B.)
November 30, 2017 National Grid initiated steps to terminate
the Mernicks' gas account for non-payment. (Reply Br. Ex.
C.) Consequently, on December 5, 2017, Ken Mernick contacted
the Consumer Section of the DPUC to request an Informal
Review regarding the gas account. (Reply Br. Ex. F.) The
Informal Review was scheduled for December 18, 2017. (Reply
Br. Ex. E.)
Grid sent the Notice of Informal Review (Notice) to the
Mernicks' home address, with a copy to Christian Lincoln,
a representative for National Grid. (Reply Br. Ex. E.) The
Notice provided for the date and time, in bold letters, along
with the specified location for the Informal Review.
Id. The Notice also stated the Informal Review was
scheduled based on the December 5, 2017 request and concerned
the residential National Grid gas utility service.
Id. It also listed the specified procedures for
requesting a postponement. Id. Additionally, the
Notice explained the consequences for a party's failure
to attend a scheduled Informal Review. Id.
December 18, 2017, the DPUC commenced the Informal Review.
National Grid representative Christian Lincoln, who was also
copied on the Notice, appeared before the Informal Review
panel. (Reply Br. Ex. F.) However, the Mernicks failed to
appear. Id. Based on the entirety of the record,
there is no showing that the Mernicks requested a
postponement of the Informal Review. On December 20, 2017,
the Decision was entered. Id. at 2. The Decision
made the following findings: (1) Ken Mernick requested an
Informal Review regarding his/her gas account on December 5,
2017; (2) the Informal Review was scheduled for December 18,
2017; (3) Ken Mernick failed to either appear at the Informal
Review or to call to reschedule; (4) the current account
balance is $4968.99; (5) the utility service is on; and (6)
the date for termination is not confirmed. Id. at 2.
The Informal Review was dismissed due to Ken Mernick's
failure to appear. Id.
Decision was mailed to the Mernicks at the same home address
as the prior Notice. Id. at 1. The Decision
describes the appeals process for parties who failed to
appear at the Informal Review hearing. Id. at 3-4.
Notably, the appeals process requires the party to file an
appeal with the Rhode Island Superior Court within thirty
days from the mailing date of the Decision. Id. at
January 19, 2018, the Mernicks filed this appeal in the
Providence County Superior Court. Presently, the Mernicks
contest the legality of the notice provided and whether the
Decision complies with § 42-35-12. The DPUC has timely
objected to the appeal.
Standard of Review
Court's review of an appeal from an administrative action
is governed by § 42-35-15. Pursuant to §
42-35-15(a), "[a]ny preliminary, procedural, or
intermediate agency act or ruling is immediately reviewable
in any case in which review of the final agency order would
not provide an adequate remedy." Sec. 42-35-15(g)
"The court shall not substitute its judgment for that of
the agency as to the weight of the evidence on questions of
fact. The court may affirm the decision of the agency or
remand the case for further proceedings, or it may reverse or
modify the decision if substantial rights of the appellant
have been prejudiced ...