The opinion of the court was delivered by: TYLER
Mrs. Bronson, as a consumer of electricity supplied by Consolidated Edison ("Con Ed") and a "victim" of its termination or "electricity cut-off" procedures, challenges the latter as violative of the Due Process Clause of the 14th Amendment. Specifically, she assails the lack of any mandate, either statutory or regulatory, that a hearing prior to electricity shut-off be held in which the consumer would be afforded opportunity to rebut the company's claims before actually being left in the dark. She has moved for summary judgment pursuant to F.R.Civ.P. 56, and defendant, in effect, has cross-moved for similar relief. Defendant has also put in issue, by way of a motion to dismiss the complaint, plaintiff's claim to a federal forum under 42 U.S.C. § 1983.
The facts as set forth by plaintiff suggest an Orwellian nightmare of computer control which breaks down through mechanical and programmers' failures and errors. According to Mrs. Bronson, it all began in October, 1969 when she received bills of several times the amount she had been charged previously. Her response was to pay only what she had been accustomed to paying and to attempt, through inquiry and complaint, to set the matter straight.
Her efforts resulted in an investigation of sorts which revealed that plaintiff's landlord, at 312 93rd Street, Brooklyn, had been diverting current through her meter. Despite this discovery, the bills continued at the higher rate, and, on May 11, 1971, Con Ed shut off Mrs. Bronson's current.
After three weeks without electricity, plaintiff went to the Department of Social Services, as she was then receiving welfare assistance, and on June 18 obtained and delivered to Con Ed an emergency two-party check for the $147.81 the utility was then demanding. Notwithstanding, the subsequent bills sent to Mrs. Bronson continued to demand payment of the "arrears". Service, which had been restored on June 14 at the request of the Legal Aid Society, was again expressly threatened with termination. Indeed, in mid-June, 1972, two Con Ed representatives actually visited Mrs. Bronson at her home to demand payment of billed arrears then claimed to be $175.
Con Ed in its papers here purports to contest the fact that an investigation ever took place. It asserts that it can find no record of any company employee ever going to 312 93rd Street to investigate Mrs. Bronson's allegations. But, in apparent flat contradiction of the assertion, Con Ed has furnished as an exhibit a letter it claims to have sent to Mrs. Bronson stating:
As a result of your recent inquiry we sent a representative to verify the information on which the bill you questioned was computed because there was a possibility that it might have been based on an incorrect meter reading. (Exhibit O, Affidavit of William Sixsmith).
To buttress this self-contradiction, in answer to Mrs. Bronson's assertion that no investigation was made until sometime in 1971 (Para. 23, Plaintiff's Complaint), Con Ed has also submitted a photostat of a letter dated April 30, 1970, purportedly received from Eloise Bronson, mentioning the investigation and its findings (Exhibit E, Affidavit of William Sixsmith). The company then inexplicably adds that ". . . there is no record indicating that Mrs. Bronson ever informed the company that the landlord at 312 93rd Street had his electrical wiring attached to the meter assigned to Mrs. Bronson." (Sixsmith Affidavit, at 7.)
Con Ed in fact claims "no record" of many of the aspects of this case. No record of Mrs. Bronson requesting service at her 93rd Street address can be found, it is claimed, in spite of the admission that a field representative had visited Mrs. Bronson on December 19, 1969 and had been told by her of her occupancy there, and that the utility had then set up an account in her name. (Id. at 2). Likewise, "no report" of any notice of Mrs. Bronson's change of address from her former residence at 9225 5th Avenue, Brooklyn to 93rd Street allegedly has been found.
However curious this all may appear, it is mild stuff indeed when considered against the story of what happened (or did not happen) to the check with which Mrs. Bronson attempted to finally end her ordeal. Defendant first concedes that the check was delivered to its Pearl Street office, credited to Mrs. Bronson's account, and then sent to the Manufacturer's Hanover Bank. But, with remarkable self-satisfaction under the circumstances, Con Ed then asserts: (1) the check was lost at the bank; (2) "the bank notified the company that they had not received the check"; and (3) the company, "by an unknown employee", then re-entered the $147.80 deficit on Mrs. Bronson's account. (Sixsmith Affidavit, at 7).
Small wonder, therefore, that Mrs. Bronson is now seeking relief from a court of record. The question to be asked at this point, however, is whether she may do so in a federal district court.
Plaintiff asserts that federal jurisdiction obtains under Title 42 U.S.C. § 1983, which, to be successfully invoked, requires a finding that "state action" be present. On the facts of this case, such a finding cannot be avoided.
In the relevant legal sense, Con Ed is by no stretch of the imagination a purely private enterprise. The State of New York, by an extensive statutory and regulatory scheme, has circumscribed almost every aspect of the utility's activities, and has, by the same means, granted it powers not available to a typical private concern.
Under the Public Service Law of New York, the Public Service Commission ("PSC") is given general supervisory powers over gas and electric corporations such as Con Ed (§ 66), grants, denies or revokes their franchises (§ 68), approves rates (§ 65), and has pervasive power to investigate and inspect (§§ 66, 67). Con Ed's rules and regulations must be filed with and approved by the Commission to be effective (§ 66). PSC approval is needed as well for the utility's ...