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Mernick v. State of Rhode Island Division of Public Utilities and Carriers

Superior Court of Rhode Island, Providence

May 22, 2019

LINDA MERNICK AND KEN MERNICK, Appellants,
v.
STATE OF RHODE ISLAND DIVISION OF PUBLIC UTILITIES AND CARRIERS, Appellee.

          For Plaintiff: Edward R. McCormick, III, Esq.

          For Defendant: Casey Lee, Esq.

          DECISION

          LANPHEAR, J.

         Before 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.

         I Facts

         The 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.)

         On 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.)

         National 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.

         On 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.

         The 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 3.

         On 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.

         II Standard of Review

         This 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) provides:

"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 ...

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