ORDER NO

							                                       ORDER NO. 78325


IN    THE    MATTER     OF   THE                                   BEFORE THE
INVESTIGATION OF THE POTOMAC *                             PUBLIC SERVICE COMMISSION
EDISON COMPANY D/B/A ALLEGHENY                                   OF MARYLAND
POWER’S ELECTRICAL FACILITIES AT *
DEEP CREEK LAKE AND THE DEATH
OF BRIAN KEITH HATFIELD          *

    (Decision of the Commission                       *
    Regarding Appeal of the Hearing                                   ______________
    Examiner’s Ruling on Motion for                   *
    Stay)                                                             CASE NO. 8941
____________________________________                  *               ______________




        Before the Public Service Commission of Maryland (“the Commission”) in this

matter is a notice of appeal and memorandum by The Potomac Edison Company (“PE” or

“the Company” d/b/a Allegheny Power) regarding the November 18, 2002 ruling of

Hearing Examiner Dennis H. Sober denying PE’s motion for stay of these proceedings.

PE has also appealed the Hearing Examiner’s Notice of Procedural Schedule.

        Substantively, this matter proceeds from the Commission’s receipt of a report

from Commission Staff, the Division of Engineering, indicating that the line over water

clearance of PE’s electrical facilities over a portion of Deep Creek Lake failed to meet

the Commission’s Code of Maryland Regulations (COMAR) standards, and the

Commission’s issuance of an order directing the Company to respond to Staff's report

and directing PE to show cause why the Company should not face a civil penalty for its

violation of the prescribed standards.1


1
  The minimum vertical clearance requirements prescribed in COMAR 20.50.02.01 are the standards
established under the National Electric Safety Code (“NESC”) and accordingly are automatically updated
from time to time as the NESC standards are updated.
The Commission received notice of the probable violation of its regulations by virtue of

PE’s filing of an accident report involving the fatality of Brian Keith Hatfield, who along

with another, operated a sailboat in the vicinity of the Company’s line on August 3, 2001.

The Commission’s jurisdiction in this matter is derived from its primary duty to ensure the

safe and reliable operation of electric facilities operated by public service companies in

Maryland, and to enforce its regulations in accordance with the public interest. Md. Code

§ 5-303 of the Public Utility Companies Article (or “PUCA”).

        The Commission maintains no jurisdiction, nor does it purport to assert any, with

regard to any determination of negligence by the Company in maintaining its facilities.

Thus, in proceeding in this matter, the Hearing Examiner is directed to avoid any

consideration of arguments bearing upon the possible culpability and liability of the

Company. However, even in the context in which the Commission exercises its primary

jurisdiction, PE asserts that its motion for stay of these proceedings should have been, and

should be, granted based on federal constitutional grounds, i.e., a Seventh Amendment

right to jury trial.2 The Company further asserts that other important issues, such as

judicial and administrative economy, fairness, and lack of harm to the public interest,

further support a stay of this matter.3 It asserts that the possibility of issue preclusion or

collateral estoppel, based on any findings by the Commission, poses a real concern or

threat in any further civil proceedings.4




2
  U.S.C.A. Const. Amend VII.
3
  PE’s Memorandum on Appeal at 3.
4
  Id. at 4.



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        The Company argues that the regulatory proceedings before the Commission and

the lawsuit filed by the Estate of Brian Keith Hatfield share key factual and legal issues.

Thus, “[f]or example, a finding by the Commission that PE failed to meet minimum

vertical clearances under the NESC could preclude PE from litigating this issue in federal

district court.”5     Further, the Company asserts that “[i]f the federal court [having

jurisdiction of the lawsuit] declares that PE is precluded from defending itself on this issue,

PE would be denied its constitutional right to have a jury decide the factual issues in the

pending civil case.”6

        Other parties in this case, the Maryland Office of People’s Counsel (“OPC”) and

the Commission’s Staff (“Staff”) opposed PE’s request for a stay and also oppose PE’s

appeal.7 In its opposition to PE’s motion for stay, OPC recommends that neither comity,

judicial economy, nor constitutional issues, applied at the expense of public safety, should

dissuade the Commission from proceeding promptly in this matter.8                              Staff also

recommends that PE’s request for a stay of these proceedings be denied. In its Reply

Memorandum, Staff points out that PE’s present appeal is interlocutory in nature and that

as such the Company has not presented a compelling case for the Commission to consider

this matter at this time.9 Further, Staff submits that notwithstanding PE’s assertions to the

contrary; proceeding with this matter as the Commission has directed will not cause PE to

lose its constitutional rights in court.10


5
  Id.
6
  Id.
7
   In reply to PE’s appeal, OPC adopted its Response To The Potomac Edison Company’s Motion To Stay
Proceedings, filed before the Hearing Examiner on November 4, 2002. Letter dated December 19, 2002.
Staff filed a separate Reply Memorandum [in response to PE’s appeal] on December 20, 2002.
8
  See OPC’s Response at 2.
9
  Staff’s Reply Memorandum at 3.
10
    Id. at 4-8. The caselaw cited by Staff, i.e. Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322 (1979) is
compelling in this regard.


                                                     3
       Pursuant to PUCA § 2-113, the Commission is required: to supervise and regulate

public service companies subject to its jurisdiction; to ensure their operation in the interest

of the public; and, to enforce compliance with the requirements of law by public service

companies, including requirements with respect to plant, manner of operation, rates and

service. In matters affecting the operation of public services companies in accordance with

the Public Utility Companies Article, the Maryland Court of Appeals has determined that

the Commission’s jurisdiction is primary and exclusive. See Howard County v. Potomac

Electric Power Co., 319 Md. 511 (1990). In other matters, such as matters involving

complaints against public services companies wherein consumers may also have an

independent common law cause of action, the Commission’s jurisdiction may be primary

and concurrent but may not necessarily be exclusive. Cf. Bell Atl. of Md., Inc. v. Intercom

Sys. Corp., 366 Md. 1 (2001).

       Pursuant to PUCA § 5-303 each public service company shall furnish equipment,

services, and facilities that are safe, adequate, just, reasonable, economical, and efficient,

considering the conservation of natural resources and the quality of the environment. In

order to achieve these goals, the General Assembly vested the Commission with broad

supervisory and regulatory powers. The powers of the Commission are those specifically

conferred by law and the implied and incidental powers needed or proper to carry out its

functions as set forth in PUCA § 2-112(b).

       Additionally, the Commission may promulgate, and indeed has promulgated,

regulations as necessary to fulfill its mission and may conduct investigations of its

regulated entities. PUCA §§ 2-115(a) and 2-121. The mandate of the Commission also

extends to injunctive relief when it determines that a public service company is violating




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the provisions of the Public Utility Companies Article. PUCA § 2-117 of the Public

Utility Companies Article. The Commission has further directed PE and all other electric

utilities within the Commission’s jurisdiction to survey its line over water facilities, to

remediate any facilities that are not in compliance with the Commission’s requirements

and to file appropriate reports to the Commission concerning this matter.

       PUCA § 13-201.1, which became effective October 1, 2001, authorizes the

Commission directly to impose a civil penalty for violations of the PUC law, an order,

direction, rule or regulation of the Commission. Prior to its enactment, the Commission's

enforcement authority involved the cumbersome process of seeking civil penalties in the

circuit courts. However, the more direct penalty and enforcement authority now provided

in the statute will enable the Commission to more expeditiously address instances of

regulatory possible violations as they occur.

       The Commission’s jurisdiction with regard to whether the Company violated

COMAR standards is primary and exclusive. Moreover, as the Hearing Examiner noted,

there is no absolute identity of issues or identity of parties from which the factual findings

in this proceeding would prejudice PE in its civil litigation. Further, the considerations

relevant to rendering findings in this case differ significantly from the factors considered in

a civil negligence lawsuit. The Company has failed to demonstrate to the Commission a

clear conflict between the administrative proceeding and the civil litigation or to provide a

convincing reason to give the Company's civil proceeding scheduling primacy over this

proceeding. PE has failed to demonstrate that the proceedings before the Commission




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effect the Company’s constitutional or other legal rights in any manner. Therefore, the

Company has not put forth a convincing argument for its request for stay.11

         Furthermore, the Company’s instant appeal of the Hearing Examiner’s ruling

denying the motion to stay is interlocutory in nature.12 In this regard, the Commission

finds that the Company has failed to present a compelling case for a stay of the

proceedings at this time. As noted in previous cases, it is the Commission's policy to take

action with regard to interlocutory matters only in exceptional circumstances.13

Exceptional circumstances involve the potential for irreparable harm or circumstances in

which an appeal at the conclusion of the proceeding would not provide the appellants an

effective remedy."14 In this instance, the criteria for granting a stay and the criteria for

granting an interlocutory appeal are much the same. In neither instance, however, has the

Company made out a case.

         With regard to the remaining issue, i.e., the Hearing Examiner’s Notice of

Procedural Schedule, Staff indicates that its recommended schedule and that of the

Company do not differ significantly. Staff further indicates that it is willing to join with

the Company in moving to revise the schedule to match the schedule proposed by the

Company. The Commission will therefore defer to the Hearing Examiner with regard to

any further consideration of the schedule at this time.

11
   See In the Matter of the Review by the Commission Into Verizon Maryland Inc.'s Compliance with the
Conditions of 47 U.S.C. § 271(c). (Petition of Core Communications, Inc.), Order No. 78088; Case No. 8921,
2002 Md. PSC Lexis 27. (Denial of a petition for stay by complainant where issues could still be raised in
other Commission and federal proceedings).
12
   A bona fide interlocutory appeal, however, generally involves less than the totality of the case. Generally,
resolution of some procedural issue less than a stay of the entire proceeding is sought. See In the matter of
the Mid-Atlantic Petroleum Distributors Association and the Mid-Atlantic Propane Gas Association's
Request for Investigation and Petition for Declaratory Order Against Southern Maryland Electric
Cooperative, Inc. and Choptank Electric Cooperative, Inc. (Interlocutory Appeal), Order No. 77684; Case
No. 8899, 2002 Md. PSC Lexis 13.
13
   Columbia Gas of Maryland, Inc. 80 Md. PSC 312, 314 (1989).
14
   See Panda-Brandywine, L.P., 85 Md. PSC 37 (1994).


                                                      6
       WHEREFORE, for the foregoing reasons, the appeal of the Potomac Edison

Company, d/b/a, Allegheny Power of the Hearing Examiner’s Ruling Regarding the

Company’s Motion for a Stay of Proceedings, shall be denied. The Commission shall

defer to the Hearing Examiner, at this time, regarding matters raised concerning the

procedural schedule.

       IT IS, THERFORE, this 5th day of March, in the Year Two Thousand Three, by

the Public Service Commission of Maryland;

       Ordered, that the appeal of the Potomac Edison Company, d/b/a, Allegheny Power

of the Hearing Examiner’s Ruling Regarding the Company’s Motion for a Stay of

Proceedings is hereby denied.

                                         By Direction of the Commission,




                                         Felecia L. Greer
                                         Executive Secretary

FLG:nrm




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