ENTERED
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991723alj022900.wpd
PUBLIC SERVICE COMMISSION
OF WEST VIRGINIA
CHARLESTON
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Entered: February 29, 2000
CASE NO. 99-1723-PSWD-C
RICHARD D. and MARY I. DUNN,
68 Tyrone-Avery Road,
Morgantown, Monongalia County,
Complainants,
V.
MORGANTOWN UTILITY BOARD,
a municipal corporation,
Defendant.
RECOMMENDED DECISION
On November 30, 1999, Richard D. and Mary I. Dunn filed a formal
complaint, duly verified, against the Morgantown Utility Board (Board).
Mr. and Mrs. Dunn alleged that damages will result from the construction
of a planned sewer line through their property. It was also alleged that
the planned line should and could be located where it does not traverse
their property. The Dunns requested that the Public Service Commission
enter an order requiring the Board to relocate the planned sewer line so
that it did not traverse or affect their property.
By Order dated November 30, 1999, the Board was directed to either
satisfy the complaint or make answer thereto, in writing, within ten days
of the service upon it by certified mail of a copy of the complaint and
a copy of the Commission's November 30, 1999 Order.
The Order also
stated that, after receipt of the answer or default in the filing
thereof, the Commission would proceed to investigate the matters set
forth in the complaint in such manner and by such means as might be
deemed proper.
On December 9 , 1999, the Board, by its counsel Timothy P. Stranko,
Esquire, filed a Motion to Dismiss and Memorandum of Law in support
thereof. The Board alleged in its Motion that this matter should be
dismissed because: (1) the claim for prospective damages is not within
the Commission's jurisdiction and (2) the construction of the planned
sewer line, including the route it will traverse, has been reviewed and
approved by the Commission in Case No. 99-0453-S-CN (October 15, 1999),
and the doctrine of res judicata precludes reopening of these issues in
this complaint proceeding.
On December 9 , 1 9 9 9 , the Dunns filed an additional document setting
forth alleged discrepancies on the project maps, asserting that the
project is poorly designed and, once again, requesting that the planned
lines be relocated so that they do not cross their property.
On January 7 , 2 0 0 0 , Staff Attorney Meyishi Blair, Esquire, filed an
Initial Joint Staff Memorandum. An Initial Internal Memorandum dated
December 2 8 , 1 9 9 9 , from James Spurlock, Technical Analyst, Engineering
Division, and a Utilities Division Final Staff Memorandum from Dixie
Kellmeyer, Utilities Analyst 111, Utilities Division, were attached
thereto. Ms. Kellmeyer stated that Technical Financial Staff agreed with
the Board's assertions that the Commission does not have jurisdiction
over the issues raised herein and that this matter should be dismissed.
Mr. Spurlock stated that Technical Engineering Staff would investigate
the matters alleged and file a final recommendation upon completion of
its investigation. Ms. Blair recommended that this matter be referred to
the Division of Administrative Law Judges in order that Technical
Engineering Staff could complete its investigation.
By Order dated January 10, 2 0 0 0 , the Commission referred this matter
to the Division of Administrative Law Judges for disposition and ordered
that an Administrative Law Judge's decision be rendered on or before June
27,
2000.
On January 10, 2 0 0 0 , the Dunns filed a letter herein stating that
they had met with the Board in late December, 1 9 9 9 . Mr. and Mrs. Dunn
stated that the Board had agreed to work with them and attempt to address
some of their concerns about the location of the planned sewer line.
On February 2 8 , 2000, Ms. Blair filed a Final Joint Staff Memorandum
to which was attached a Final Internal Memorandum dated February 2 5 ,
2000, from Mr. Spurlock. Mr. Spurlock reported that he had recently
spoken with Mrs. Dunn and the Board and was informed that the parties had
resolved their differences between themselves.
Accordingly, Staff
recommended that this matter be dismissed.
By letter dated February 2 8 , 2 0 0 0 , from Sandra Squire, Executive
Secretary, the parties hereto were furnished a copy of Staff's Final
Joint Staff Memorandum and afforded seven ( 7 ) days within which to
respond thereto, in writing. On February 2 9 , 2 0 0 0 , Ronald R. Brown,
Esquire, counsel for Mr. and Mrs. Dunn, filed a letter stating that a
settlement of all issues in controversy between the Dunns and the Board
had been achieved.
FINDINGS OF FACT
1.
On November 30, 1 9 9 9 , Richard D. and Mary I. Dunn filed a
formal complaint against the Morgantown Utility Board objecting to the
location of a planned sewer line through their property and alleging that
damages to their property would result from the line's construction.
(See, November 30, 1 9 9 9 filing).
2.
Commission Staff recommended that this matter be dismissed as
having been satisfactorily resolved. (See, Final Joint Staff Memorandum
and attachment filed February 2 8 , 2 0 0 0 ) .
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3.
Mr. and Mrs. Dunn, by counsel, filed a letter stating that all
matters in controversy between the parties have been satisfactorily
resolved. (See, February 29, 2000 filing).
CONCLUSION OF LAW
Upon consideration of all of the above, the undersigned Administrative Law Judge is of the opinion that the complaint filed herein on
November 30, 1999, by Richard D. and Mary I. Dunn against the Morgantown
Utility Board should be dismissed from the Commission's docket of open
cases as having been satisfactorily resolved.
ORDER
IT IS, THEREFORE, ORDERED that the complaint filed herein on
November 30, 1999, by Richard D. and Mary I. Dunn against the Morgantown
Utility Board, be, and hereby is, dismissed and removed from the
Commission's docket of open cases as having been satisfactorily resolved.
The Executive Secretary is hereby ordered to serve a copy of this
order upon the Commission by hand delivery, and upon all parties of
record by United States Certified Mail, return receipt requested.
Leave is hereby granted to the parties to file written exceptions
supported by a brief with the Executive Secretary of the Commission
within fifteen (15) days of the date this order is mailed. If exceptions
are filed, the parties filing exceptions shall certify to the Executive
Secretary that all parties of record have been served said exceptions.
If no exceptions are so filed this order shall become the order of
the Commission, without further action or order, five (5) days following
the expiration of the aforesaid fifteen (15) day time period, unless it
is ordered stayed or postponed by the Commission.
M Y party may request waiver of the right to file exceptions to an
Administrative Law Judge's order by filing an appropriate petition in
writ.ins with t.he Secretary. No such waiver will be effective until
approved by order of the Commission, nor shall any such waiver operate to
make any Administrative Law Judge's Order or Decision the order of the
Commission sooner than five (5) days after approval of such waiver by the
Commission.
f
Melissa K. Marland
Chief Administrative Law Judge
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