PER CURIAM.
In this appeal, we consider whether — in reviewing an administrative law judge's findings at the conclusion of a remand proceeding concerning appellant Peter Triestman's claim that electric and gas service was diverted from his premises-the Board of Public Utilities properly determined Triestman's tenancy in a four-story commercial building in Newark was a commercial tenancy. Because the ALJ failed to make it clear to Triestman that the nature of his tenancy — originally found by the ALJ and the BPU to be residential — would be revisited in her subsequent findings, we remand so that Triestman may have a full and fair opportunity to offer evidence on that question.
Triestman instituted these proceedings when he complained to the BPU that his electric and gas service was being diverted and that he believed he was overbilled by Public Service
Electric and Gas Company between June 2009 and February 2012. Triestman also asserted that PSE&G improperly refused to classify his account as residential for a substantial portion of the same period. In responding, PSE&G performed a field investigation in February 2011 and concluded Triestman was utilizing a 4,000 square foot open loft area for both commercial and residential purposes.
The dispute was transmitted as a contested case to the Office of Administrative Law, which assigned an administrative law judge to the matter. At a hearing in July 2012, Triestman testified he and his family resided in the premises, and PSE&G provided testimony that the premises appeared to have been used for both residential and commercial purposes. The ALJ heard extensive testimony concerning whether a diversion had occurred and ultimately concluded there was a diversion "because one of his breakers provided service to the lights in the stairwell of the building" that were "outside of [Triestman's] premises," and also that Triestman was "incorrectly billed at commercial rates for gas until February 2011 and incorrectly billed at commercial electric rates until December 2011."
Triestman filed exceptions and, by way of a thorough written decision, the BPU determined that the ALJ's decision "about [Triestman's] diversion of electric service regarding the hallway lights, [Triestman's] right to a revised electric bill, and his request for residential rates are reasonable and fully supported by the record." The BPU, however, also determined that the ALJ
Consequently, the BPU remanded for reconsideration of the ALJ's "conclusions regarding PSE&G's compliance with
Following this direction, the ALJ heard additional testimony over two days. The proofs elicited at that time further illuminated the nature of the tenancy, and the ALJ ultimately concluded there was no diversion of service other than the hall lights to which the ALJ had referred in the earlier decision. The ALJ also concluded that Triestman "was not entitled to a diversion investigation because he is not a tenant-customer in accordance with
In its thorough written decision, the BPU adopted the ALJ's findings and modified its earlier ruling that there was a diversion in light of the new finding that Triestman "is a commercial tenant"; the BPU directed PSE&G to bill Triestman "on the commercial tariff going forward."
Triestman appeals the BPU's final decision, arguing:
Because we find substance in Triestman's arguments concerning the scope of the remand proceedings, we do not yet reach the merits of these issues and, instead, remand for additional proceedings.
Triestman has argued the ALJ erred in failing to comply with the mandate expressed by the BPU when it remanded the matter to the ALJ. He is correct that the issues as limited by the remand did not expressly encompass the dispute about the nature of the tenancy, although it is arguable that in complying with the remand order the ALJ may have found it necessary to explore the commercial/residential dispute. The problem, however, is with the lack of clarity regarding the remand proceedings.
Although PSE&G was permitted to elicit testimony that the tenancy was commercial,
Triestman was certainly entitled to anticipate from the ALJ's comments that the ALJ would not further examine or rule upon — and he would have no further need to elicit testimony or other evidence about — whether his tenancy was commercial or residential.
A "trial court is under a peremptory duty to obey in the particular case the mandate of the appellate court precisely as it is written."
In remanding, we do not mean to suggest the ALJ was not permitted to consider the nature of the tenancy, only that Triestman was entitled to notice that the issue would be revisited. Because Triestman appears not to have been given a full and fair opportunity to offer evidence on the commercial/residential question, we find it necessary to remand for that opportunity.
The matter is remanded to the BPU, which is directed to forthwith remand the matter to the ALJ so that Triestman may offer any additional evidence and arguments he may wish to assert about whether the tenancy was residential or commercial. These proceedings must be completed within forty-five days.
Remanded. We retain jurisdiction.