EnergyNorth v. UGI

2003 DNH 057

• Court: District Court, D. New Hampshire
• Decided: April 3, 2003
• Docket: CV-00-500-B
• Status: Published

Opinion

EnergyNorth v . UGI CV-00-500-B 04/03/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

EnergyNorth Natural Gas, Inc.

v. Civil No. 00-500-B 2003 DNH 057 UGI Utilities, Inc.

O R D E R

UGI Utilities, Inc. ("UGI") has filed a motion in limine

seeking to exclude three documents: (1) an 1894 article from the

Daily Philadelphia Stockholder detailing UGI's relationships with

its subsidiaries; (2) a Securities and Exchange Commission

("SEC") opinion. In the Matter of Manchester Gas Co., 7 S.E.C. 57

(April 4, 1940), in which the SEC concluded that UGI's

subsidiary, Manchester Gas Company ("MGC"), was subject to UGI's

controlling influence under the Public Utility Holding Company

Act ("PUHCA"), 15 U.S.C. § 79 (1997 & Supp. 2003), et sea; and

(3) the Third Circuit's decision in United Gas Improvement Co. v.

Securities and Exchange Commission, 138 F.2d 1010 (3d Cir. 1943),

which affirmed two decisions of the SEC that reguired UGI to

divest itself of certain subsidiaries. I address UGI's challenge to each document in turn.

I. Daily Philadelphia Stockholder Article

_____ UGI first argues that the Daily Philadelphia Stockholder

article is irrelevant. I disagree. The article offers a

detailed description of UGI's relationship with its subsidiaries,

including MGC. As such, it is plainly relevant.

UGI next claims that the article is inadmissible hearsay.

Again, I disagree. Fed. R. Evid. 803(16) provides an exception

to the hearsay rule for "[s]tatements in a document in existence

for twenty years or more the authenticity of which has been

established." An ancient document is deemed authentic if, as

Fed. R. Evid. 901(b)(8) provides, it "(A) is in such condition as

to create no suspicion concerning its authenticity, (B) was in a

place where it, if authentic, would likely be, and (C) has been

in existence 20 years or more at the time it is offered." "Once

a document gualifies as an ancient document, it is automatically

excepted from the hearsay rule under Fed. R. Evid. 803(16)."

Threadgill v. Armstrong World Indus., Inc., 928 F.2d 1366, 1376

(3d Cir. 1991) .

The Daily Philadelphia Stockholder article plainly gualifies

- 2 - as an ancient document. It is unquestionably more than 20 years

old and UGI has not challenged EnergyNorth's claim that it

satisfies the requirements of Rule 901. Moreover, its

reliability cannot be seriously questioned as it was created many

years before the present controversy arose, it was found in UGI's

own files and it appears to have been based on information

obtained from sources with no motive to misrepresent the extent

of UGI's control over its subsidiaries. Although EnergyNorth has

not, because of the article's age, been able to establish through

direct evidence that its author was speaking from personal

knowledge, this fact alone does not bar the article's admission

when, as here, I have no reason to question its reliability. See

Fed. R. Evid. 803(16) advisory committee's note (citing with

favor Dallas County v. Commercial Union Assurance Co., 286 F.2d

388 (5th Cir. 1961) (upholding admissibility of 58 year-old

newspaper article without direct evidence that article was based

on personal knowledge); c f. Jack B. Weinstein and Margaret A.

Berger, Weinstein's Federal Evidence § 803.18 (2002) ("to be

admissible under Rule 803(16), an ancient document must generally

be based on the personal knowledge of its author. However, it

would usually be impossible to prove personal knowledge after the lapse of 20 years or more. Nevertheless, a showing from the

circumstances that the declarant could have had requisite

knowledge may be required."). Accordingly, I reject UGI's

challenge to the admissibility of the Daily Philadelphia

Stockholder article.

II. SEC Ruling

UGI argues that the SEC ruling is inadmissible because it is

irrelevant, its prejudicial effect outweighs its probative value,

and it is as inadmissible hearsay.

One of the issues in this case is whether and to what extent

UGI controlled the operations of MGC. While the SEC opinion

analyzes the concept of control under the PUHCA and EnergyNorth's

claims in this case are based on CERCLA and New Hampshire law,

the concept of control is sufficiency similar in both contexts

that the SEC's conclusions under the PUHCA are relevant here.

Moreover, because these claims will be tried to me rather than to

a jury, there is no danger that EnergyNorth will be able to

misuse the SEC opinion by attributing greater significance to it

than it warrants. Finally, the opinion plainly satisfies the

requirements for admission under the Fed. R. Evid. 803(8) because

the SEC's conclusions represent reliable "factual findings

- 4 - resulting from investigations made pursuant to authority granted

by law." Fed. R. Evid. 803(8); see also Lubanski v. Coleco

Indus., Inc., 929 F.2d 42, 45-46 (1st Cir. 1991). Thus, I deny

UGI's challenge to the admissibility of the SEC opinion.

Ill. The Third Circuit Decision

UGI argues that the Third Circuit decision is inadmissible

hearsay. I agree. EnergyNorth does not dispute UGI's contention

that the Third Circuit decision gualifies as hearsay. The only

possible exception to the hearsay rule that may apply in this

case. Rule 803(8), does not apply because the exception does not

cover judicial fact finding. See Nipper v. Snipes, 7 F.3d 415,

417 (4th Cir. 1993); United States Steel, LLC v. Tieco, Inc., 261

F.3d 1275, 1288 (11th Cir. 2001) . Accordingly, I grant UGI's

motion to exclude the Third Circuit decision.1

CONCLUSION

For the forgoing reasons, I deny UGI's motion in limine to

exclude the Daily Philadelphia Stockholder article and the SEC

1 EnergyNorth has failed to fully develop its suggestion that UGI is collaterally estopped from denying certain factual determinations made in the Third Circuit opinion. Thus, I decline to address this argument.

- 5 - opinion. In the Matter of Manchester Gas Co., 7 S.E.C. 57 (1940)

but grant its motion to exclude the Third Circuit decision.

United Gas Improvement Co. v. SEC, 138 F.2d 1010 (3d Cir. 1943)

(Doc. N o . 53).

SO ORDERED.

Paul Barbadoro Chief Judge

April 3, 2003

cc: Bruce Felmly, Esg. E. Tupper Kinder, Esg.

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