4. Discussion

As a general rule, this Commission does not adjudicate contract disputes merely because one party is a public utility. Indeed, the California Supreme Court in Hempey v. Public Utilities Commission (1961) 56 C.2d 214, has held that the Commission may not adjudicate contract disputes absent express authorization by the Legislature. This rule is based on Article VI of the California Constitution, which assigns purely judicial functions to the courts. Under Article XII, Section 5, of the Constitution, the Legislature has plenary authority, unlimited by conflicting provisions of other parts of the Constitution, to confer jurisdiction on this Commission. (See, In re City of Fairfield (1984) 21 CPUC2d 404.)

Neither party here has addressed this constitutional issue. Nor has either directed us to a legislative enactment conferring jurisdiction on the Commission where the dispute involves alleged breach of contract for non-payment under the Residential Energy Efficiency Service Providers Program. The parties, however, have agreed in their contract that breach-of-contract disputes, as opposed to disputes about Commission rules or orders, should be heard by the civil courts in San Diego County.

We find no merit in complainant's claim that the dispute here centers on Commission rules or orders, rather than on breach. Complainant's suggested Scoping Memo seeks Commission resolution of such issues as "Did Complainant perform the work?"; "How much does Defendant owe Complainant for the work performed?"; "Has the Complainant substantially performed?"; "If the contract has failed, what is the fair value [of the work performed]?" These issues as framed by complainant present a straight-forward contract dispute, not a violation of any Commission rules, provisions or orders.

As both parties agree, the Commission is authorized to award reparations, but not damages. Yet, essentially, damages are the relief sought by the complainant if the trier of fact finds that Quality Conservation has substantially performed its obligations under the contract. It follows that for reasons of comity, if not of jurisdiction, both adjudication of the claim of breach of contract for non-payment and the award of damages, if any, should be dealt with by an adjudicator authorized to accomplish both.

By the same token, we do not agree with complainant that the alternative dispute resolution provisions of the contract require this Commission to take on the role of arbitrator. The contract provisions do not so provide, nor is there anything in D.97-12-103 that suggests such a role. Had the parties intended to bind themselves to arbitration, they would have said so in unequivocal terms. The Renaissance Hotel decision cited at length by complainant confirms that parties must specifically agree to a process that constitutes binding arbitration, which is not the case here.

We turn then to SDG&E's contention that the complaint fails to state a violation of any provision of law or of any order or rule of the Commission, as required by Pub. Util. Code § 1702. Complainant argues that an alleged breach of contract by refusal to pay constitutes a violation of D.97-12-103. But that vague and conclusory statement directs us to no provision of D.97-12-103 nor to any other law, order or rule of the Commission that is claimed to have been violated.

In the absence of any alleged violation by the utility under § 1702, and in the absence of any proposed relief that this Commission is empowered to provide, the motion to dismiss is granted. This complaint proceeding is closed.

The scope of this proceeding is set forth in the complaint. Our order today confirms that Administrative Law Judge Walker is the presiding officer, and no hearing is necessary.