1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

City of Kenova, West Virginia 

Petitioner

vs) No. 19-0919 (PSC Case No. 18-1232-S-C)

The Public Service Commission of West Virginia, 

Respondent

MEMORANDUM DECISION

Petitioner City of Kenova (City)1appeals the September 6, 2019 order of the Public 

Service Commission of West Virginia (Commission)2requiring the City to make a leak 

adjustment credit in the amount of $233.12 to a sewer account following the discovery of 

a hidden commode leak.

Upon consideration of the standard of review, the parties’ briefs, oral arguments and 

the record on appeal, the Court finds no substantial question of law or prejudicial error. 

For these reasons, a memorandum decision affirming the Commission’s decision is 

appropriate under Rule 21 of the Rules of Appellate Procedure.

In August 2018, Rebecca Florczak received a high water bill totaling $424.55.3

After receiving the bill, Ms. Florczak’s daughter began investigating and immediately 

realized that a commode in Ms. Florczak’s master bathroom was leaking. They fixed the 

leak by adjusting the chain to the flapper valve. Although Ms. Florczak slept in the master 

bedroom adjacent to the master bath during the timeframe that the commode leaked, she 

had never entered the master bathroom because it had been used exclusively by her recently 

deceased husband.4 And the master bathroom door was not directly adjacent to the master 

 

1 The City of Kenova is represented by counsel, F. Paul Calamita, Esq.

2 The Commission is represented by staff attorney, John R. Auville, Esq., and 

general counsel, Jessica M. Lane., Esq.

3 Ms. Florczak’s water usage was typically around 3,000 gallons per month. The 

sewer bill at issue reflected water usage of 19,200 gallons that month.

4 Ms. Florczak testified before the Administrative Law Judge (ALJ) that her husband 

died after being in the hospital from June 12, 2018 to June 27, 2018. Prior to his death, 

FILED

May 26, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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bedroom. So, although Ms. Florczak slept in the master bedroom, she did not hear the 

water running in the bathroom. 

After discovering the leaking commode, Ms. Florczak requested a leak adjustment 

from the City. City officials informed her that the Commission’s rule prohibits granting a 

leak adjustment. So, Ms. Florczak was required to pay the full amount due in order to 

maintain her water service. But, she filed a formal complaint with the Commission on 

August 31, 2018. The City filed an answer seeking to dismiss her complaint, arguing that 

because the high bills were a result of a leaking commode, Ms. Florczak did not qualify for 

a leak adjustment under Water Rule 4.4.c.1, which provides that “leaking commodes . . . 

shall not constitute leaks which entitle the customer to a recalculated bill.” Following an 

investigation by the Commission Staff, it filed its Final Memorandum on November 29, 

2018 recommending that Ms. Florczak receive a leak adjustment credit in the amount of 

$233.12 because the high bills were most likely caused by a leaking commode that was not 

obvious or detectable to Ms. Florczak, as that area of her residence was closed off due to 

the husband’s cancer treatment and death. 

Following an evidentiary hearing on December 21, 2018, the Administrative Law 

Judge (ALJ) entered a recommended decision on February 6, 2019 dismissing the case.5

The ALJ found that Water Rule 4.4.c.1 is unambiguous and prohibits the City from 

granting an adjustment for a commode leak. On February 26, 2019, Ms. Florczak filed 

exceptions to the recommended decision, asking the Commission to reverse the ALJ’s 

decision and grant her a leak adjustment. Ms. Florczak argued that the City was just as 

responsible as she was, if not more so, for failing to detect the leak because the City has a 

radio read meter system with capability to send an alert on a high meter read, but the City

did not activate the alert system. And, she argued that there are exceptions to every rule 

 

Mr. Florczak used a treatment called BCG, a medication injected into the bladder to destroy 

cancer cells. Every time he flushed the commode, he had to add a chemical solution to the 

commode to dilute the chemicals’ toxicity. So, due to the nature of these treatments, the 

bathroom was off-limits to guests before Mr. Florczak’s death. In the month following his 

death, Ms. Florczak did not go into the bathroom because it had not yet been sterilized to 

make it safe to use. She routinely used the guest bathroom instead, storing all of her 

toiletries there. 

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In addition to the testimony provided by Ms. Florczak and her daughter at this 

hearing, the ALJ also heard evidence from a City meter utility technician who testified that

although the City had a special radio read system that alerts for a high meter read in order 

to notify customers of a potential leak prior to issuing a bill, it did not activate the alert 

system. A technical analyst from the Commission’s Engineering Division also provided 

testimony regarding other cases where leak adjustments had been made in instances where 

a complainant had a hearing problem or other physical difficulty making it difficult for the 

leak to be visible or audible to the complainant.
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and the Commission had approved a leak adjustment for a customer who could not access 

the upper level of the home. She reiterated that she did not hear the leak. 

The Commission Staff filed a response to Ms. Florczak’s exceptions disagreeing 

with the ALJ’s recommended decision, noting that the Commission often engages in a 

review of the circumstances of a leak, even if a commode is the cause.6 The Staff argued 

that the Commission should grant the exceptions filed by Ms. Florczak because she had 

good reason for restricting access to the master bathroom, and the layout of the house made 

hearing the leak difficult because the master bathroom door was not directly adjacent to 

the master bedroom. On September 6, 2019, the Commission entered a final order 

determining that the unique facts of this case supported granting a leak adjustment because 

the leak was hidden or otherwise undetectable to Ms. Florczak. The City then filed this 

appeal.

The issue before this Court is whether leak adjustments are expressly prohibited 

under Water Rule 4.4.c.1. The City contends that in addition to the clear language of the 

rule stating that “leaking commodes . . . shall not constitute leaks which entitle the customer 

to a recalculated bill,” the Commission had also explained during the adoption of the rule 

that, “we . . . believe that the rule should not apply to leaky commodes, dishwashers or 

other appliances. We have attempted to place an exclusion to this rule to prevent 

adjustments in those circumstances. The adjustment is intended to be applied for major 

leaks such as pipes which break.”7 The City cites two PSC cases involving unoccupied

houses, arguing that the Commission did not engage in a discoverability analysis in those 

cases.

8 The City asserts that in this case, the Commission’s leak adjustment amounts to a 

“revised rule through interpretation.” 

Conversely, the Commission asserts that it did not change the leak adjustment rule 

in this case. It argues that Water Rule 4.4.c.1 does not contain an absolute prohibition to 

leak adjustments, and since adoption of this rule, the Commission has engaged in a caseby-case analysis to determine whether specific facts and circumstances warrant

adjustments. The Leak Adjustment Rule provides:

 

6 The City did not file a response.

7

In re Revised Rules and Regulations for Water Util., Gen. Ord. No. 188.12, 1995 

WL 735601 at *4 (W. Va. P.S.C. Oct. 11, 1995) (Emphasis added).

8 See Currence v. Elkins Mun. Water Dep’t, No. 03-0004-W-C, 2003 W.Va. PUC 

LEXIS 1533 (W. Va. P.S.C. April 9, 2003)(finding leaks associated with a toilet in a vacant 

house are not entitled to a leak adjustment); Sabo v. Morgantown Util. Bd., No. 02-0367-

WS-C, 2002 WL 35458289 (W. Va. P.S.C. June 14, 2002)(finding leaks from a toilet are 

not qualified for leak adjustments even though the resident was deceased).
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Each utility shall develop and implement a written policy 

concerning the adjustment of customer bills where the bill 

reflects unusual usage which can be attributable to leakage on 

the customer’s side of the meter. Leaking commodes, dripping 

faucets, malfunctioning appliances and similar situations shall 

not constitute leaks which entitle the customer to a recalculated 

bill. The policy shall be maintained in the utility’s office for 

inspection by the public and shall be applied in a nondiscriminatory manner to all customers. The reasonableness 

of the utility’s policy or practice with respect to a policy shall 

be subject to Commission review in a formal complaint 

proceeding.[9]

The Commission promulgated the Leak Adjustment Rule in its current form in 

1995.10 The Commission notes that it discussed utility opposition to customer leak 

adjustments in its 1995 order, specifically, “[s]everal parties generally opposed mandatory 

leak adjustments. They believe that the adjustments send the wrong message to customers 

regarding maintaining their lines. We continue to believe leak adjustments are 

reasonable.”

11 In the same order, the Commission noted utilities’ requests that the 

Commission limit leak adjustments to underground leaks only, and purposefully exclude 

leaking commodes and faucets.12 The Commission contends that it refused to limit leak 

adjustments to underground leaks, and instead incorporated the rule language relied on by 

Petitioner to disallow leaks that are obvious to the customer.

The Commission asserts that the Leak Adjustment Rule includes two ways to 

evaluate leaks for eligibility for an adjustment. First, the use of the word “entitle” signals 

to water utilities and their customers that customers are not automatically entitled to an 

adjustment for leaks caused by leaking commodes, dripping faucets, or malfunctioning 

 

9 Water Rule 4.4.c.1 (Emphasis added). 

10 In re Revised Rules and Regulations for Water Util., Gen. Ord. No. 188.12, 1995 

WL 735601.

11 G.O. 188.12 at 3 (Emphasis added). The Commission explains that shortly after 

issuing G.O. 188.12, the Commission finalized corresponding Sewer Rules through 

General Orders 188.12 In the Matter of Revised Rules and Regulations for Water Utilities

and General Order 186.8 In the Matter of Revised Rules and Regulations for Sewer Utilities

November 3, 1995.

12 Id. at 4.
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appliances. Second, the Leak Adjustment Rule provides that the Commission will review 

in a formal complaint proceeding the reasonableness of a utility’s leak adjustment policy 

and its application to the circumstances of a particular leak. Because an endless number 

of scenarios can lead to a customer leak, the Commission maintains that it provided 

guidance as to what a leak adjustment policy should look like, while reserving its authority 

to review individual fact patterns. 

The Commission argues that in subsequent orders applying the language of Water 

Rule 4.4.c.1, it affirmed that the rule does not prohibit a leak adjustment for a leaking 

commode, dripping faucet, or malfunctioning appliance. It contends that it has also 

consistently engaged in an individual review of the circumstances in each case, citing to 

several where it held that leaks may qualify for an adjustment if the leak was hidden, or 

not obvious or detectable, to the customer.13

The Commission asserts that in McDowell v. Jefferson Utilities Inc. and Jefferson 

County Pub. Serv. Dist.14, a case involving a leak originating from a faulty spigot at a nondetectable location at the rear of a residence, it described its application of the leak 

adjustment rule as follows: 

[T]he underlying policy behind the rules is that the 

customer, not the utilities, should be responsible for costs 

related to leaks on the customers’ side of the meter that are 

obvious to the customer, and, thus are easily repaired by the 

customer and preventable through routine maintenance. As the 

Commission has recognized, “[o]ne purpose of the applicable 

Water Rules and Sewer Rules is to deny leak adjustments in

cases where the accrual of a large bill is due to the customer’s 

 

13 See Collins v. Corp. of Shepherdstown, Case No. 01-1430-WS-C (Commission 

Order, July 23, 2002)(leak not noticeable because it originated in broken pipe in wall and 

water did not run into house); Solenberger v. Martinsburg Mun. Water and Sewer Dep’ts., 

Case No. 05-0645-WS-C (Recommended Decision, August 15, 2005, Final Commission 

Order, September 7, 2005)(utility agreed to leak adjustment because leak due to faulty 

bathtub faucet located in vacant house owned by customer); Mayfield, Inc. v. Berkeley 

Cnty. Pub. Serv. Water Dist., Case No. 02-1416-PWD-C (Recommended Decision, June 

5, 2003, Final Commission Order June 25, 2003)(leak in crawl space undetected for a 

period of time); and Watkins v. City of Grafton, Case No. 97-1545-S-C (Commission 

Order, February 11, 1998)(leak adjustment made to customer based on hardship waiver 

under Water and Sewer Rules because the customer had hearing problems and difficulty 

discerning the sound of running water).

14 Case No. 09-0769-W-PSD-C (Commission Final Order, January 11, 2011).
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own failure to notice an obvious leak (like a leaky toilet)” 

Collins v. Corp. of Shepherdstown, Case No. 01-1430-WS-C 

(Commission Order dated July 23, 2002) at p. 7.[15]

In the same decision, the Commission stated: 

Applying the underlying policy of customer 

responsibility for readily discernable leaks leads to the obvious 

corollary that if the customer has a leaking toilet, dripping 

faucet, malfunctioning appliance or similar situation that is not 

obvious or detectable to the customer, a leak adjustment is 

approvable under the rules.[16]

The Commission contends, and we agree, that a review of the cases cited by the City also 

supports the Commission’s argument that Water Rule 4.4.c.1 does not absolutely prohibit 

a billing adjustment for undetected water consumption relating to commodes and that the 

circumstances of a leak matter.17 

When this Court reviews the Commission’s administrative orders, we have 

explained that

“The detailed standard for our review of an order of the Public 

Service Commission contained in Syllabus Point 2 of 

Monongahela Power Co. v. Public Service Commission, 166 

W.Va. 423, 276 S.E.2d 179 (1981), may be summarized as 

follows: (1) whether the Commission exceeded its statutory 

jurisdiction and powers; (2) whether there is adequate evidence 

 

15 Id. at 5. 

16 Id. See also Jenkins v. Berkeley Cty. Pub. Serv. Sewer Dist., Case No. 17-0663-

PSD-C (W. Va. P.S.C. Oct. 1, 2018)(reaffirming principles discussed in McDowell and 

permitting bill adjustment for a hidden leak resulting from a malfunctioning water softener 

valve).

17 See Sabo v. Morgantown Util. Bd., No. 02-0367-WS-C, 2002 WL 35458289 at *2

(W. Va. P.S.C. June 14, 2002) (“While [Commission Staff] generally agreed that a leaking 

commode under most circumstances did not qualify for a leak adjustment, [Commission 

Staff] would reserve final judgment until a field investigation was completed.”); see also

Currence v. Elkins Mun. Water Dep’t, No. 03-0004-W-C, 2003 W.Va. PUC LEXIS 1533

at *6 (W. Va. P.S.C. April 9, 2003) (ALJ dismissed the case after a “consideration of all of 

the above,” after no objections were filed to the Staff’s recommendation of dismissal.).
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to support the Commission’s findings; and, (3) whether the 

substantive result of the Commission’s order is proper.”[18] 

Recognizing a deferential standard of review, this Court has also stated, “‘[t]he principle 

is well established . . . that an order of the public service commission based upon its finding 

of facts will not be disturbed unless such finding is contrary to the evidence, or is without 

evidence to support it, or is arbitrary, or results from a misapplication of legal 

principles.’”

19

The Commission reviewed the City’s application of its leak adjustment policy to the

particular facts of this case in a manner consistent with its previous decisions and Water 

Rule 4.4.c.1, and there was adequate evidence to justify a leak adjustment. The undisputed 

testimony in the record shows that due to the nature of the cancer treatments of Ms. 

Florczak’s late husband, the bathroom was strictly off-limits to guests before and after his 

death. Ms. Florczak exclusively used the guest bathroom and did not hear the water 

because the master bathroom door was not directly adjacent to the master bedroom. Under 

this Court’s highly deferential standard of review, we find no reason to disturb the

Commission’s order.20 Because we find that the grant of the leak adjustment was proper, 

the City’s request for attorney’s fees and costs is not warranted.

21

 

18 Syl. Pt. 2, Pool v. Greater Harrison Cty. Pub. Serv. Dist., 241 W. Va. 233, 821 

S.E.2d 14 (2018) (citing Syl. Pt. 1, Central W.Va. Refuse, Inc. v. Pub. Serv. Comm’n of 

W.Va., 190 W.Va. 416, 438 S.E.2d 596 (1993)).

19 Syl. Pt. 1, in part, Sierra Club v. Pub. Serv. Comm’n, 241 W. Va. 600, 827 S.E.2d 

224 (2019) (citations omitted).

20 See W. Va. Citizens Action Group v. Pub. Serv. Comm’n, 233 W. Va. 327, 758 

S.E.2d 254 (2014). It is also important to note that a leak adjustment does not adversely 

impact the City or its other customers financially. In a case where a customer is awarded 

a leak adjustment, the customer’s account is credited the amount of excess revenue billed, 

net of the actual variable costs attributed to leaked water. In this manner, the utility is 

reimbursed for the actual variable cost of the water it produced. So, with the payment of a 

leak-adjusted bill, the City is made whole for the actual expenses incurred in producing the 

additional water but does not receive revenues over and above those costs.

21 The City additionally lodged an objection below to the Commission’s web docket 

practice to restrict certain cases from open access on the Commission website. However, 

the ALJ overruled the objection. The City now raises a second issue asserting that the 

Commission’s restricted web docket violates the Freedom of Information Act (FOIA), and 

that because taxpayer dollars fund the Commission’s operations, the Commission should 

not be able to profit from these electronic records by selling the records to Westlaw and 

Lexis while limiting access for taxpayers. The City maintains that without access to the 
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For these reasons, we affirm the Commission’s September 6, 2019, order requiring 

the City to make a leak adjustment credit in the amount of $233.12 to the sewer account of 

Ms. Florczak.

Affirmed.

ISSUED: May 26, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison

 

records, complainants and courts are at a disadvantage because only the Commission can 

rely on the full history of decisions. We find this issue of no merit. As the Commission 

correctly contends, FOIA does not require a public body to publish public documents on 

the internet, but rather only requires a public body to provide non-protected information 

upon request. See W. Va. Code § 29B-1-3 (2019). And, as represented by the Commission, 

it has recently reviewed its website restriction practices and has decided to post un-redacted 

versions, if possible, of Orders issued in customer billing complaints on or after October 

23, 2019.