Highfield Water Co. v. Public Service Commission

416 A.2d 1357, 46 Md. App. 332, 1980 Md. App. LEXIS 332
CourtCourt of Special Appeals of Maryland
DecidedJuly 14, 1980
DocketNo. 1485
StatusPublished
Cited by3 cases

This text of 416 A.2d 1357 (Highfield Water Co. v. Public Service Commission) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Highfield Water Co. v. Public Service Commission, 416 A.2d 1357, 46 Md. App. 332, 1980 Md. App. LEXIS 332 (Md. Ct. App. 1980).

Opinion

Wilner, J.,

delivered the opinion of the Court.

Appellant — Highfield Water Company (HWC) — formerly provided water service to about 300 families in a rural area of Washington County. On September 8, 1978, having previously conducted a public hearing in the matter, the Public Service Commission (PSC) issued Order No. 63332, in which it concluded that (1) HWC was not providing adequate service to its customers, (2) there was little likelihood that the company would be financially able to make the necessary improvements in order to provide adequate service, and (3) "it is consistent with the public convenience and necessity to have public ownership of the facilities necessary to provide water service to the Highfield area.”

Upon these findings, the PSC revoked HWC’s authority to exercise its franchise and requested the State Department of Health and Mental Hygiene (DHMH) and the Washington County Sanitary Commission (WCSC) to assume their respective responsibilities with respect to furnishing water service to the area. HWC appealed that order and now appeals the affirmance of it by the Circuit Court of Baltimore City. It complains (or asks) that:

"I. The lower court erred in refusing to reinvestigate and reverse the findings of the [334]*334Public Service Commission. The actions of the Commission are clearly subject to review and must be reversed if it is found that the Commission acted in an improper manner.
II. The action of the Public Service Commission in issuing Order No. 63332 was improper due to the inadequate notice given to Highfield Water Company of the nature of the proceedings before the Commission.
III. Did the lower court err in failing to reverse the action of the Public Service Commission due to the Public Service Commission’s failure to give preference to Highfield Water Company’s rate case?
IV. The action of the Public Service Commission in revoking Highfield Water Company’s right to exercise its franchise exceeded the statutory authority granted to it by Md. Code art. 78, § 24(a).
V. Did the lower court err in failing to find that the actions of the Public Service Commission constitute an unconstitutional taking of Highfield Water Company’s property, because the procedure used was improper, because the Public Service Commission has no power to acquire property, and because there were means available for the proper taking of the property by authorized governmental agencies?”

A history of the proceedings that led to Order No. 63332 will facilitate our consideration of these issues.

HWC and a sister company that was incorporated in Pennsylvania jointly operated an integrated water system, supplying water in a service area that bordered the Mason-Dixon line. In 1974, the Pennsylvania company (and with it the Pennsylvania part of the integrated system) was purchased by the local public water authority and thus became lost to HWC as a steady resource. Thereafter, a [335]*335number of problems developed for HWC. Customers received rusty and malodorous water, at low pressures; every now and then, there was an outright cessation of water service, on one occasion lasting several weeks.

On June 29, 1977, HWC applied for an increase in rates, apparently to take effect July 31, 1977. Pursuant to its authority under Md. Ann. Code, art. 78, § 70 (b), the PSC suspended the increased tariff for 150 days (and then for an additional 30 days) pending a determination as to the justice and reasonableness of the increase. On January 17, 1978 — within the allowable 180-day period (dating from July 31, 1977) — PSC Order No. 62835 granting a part of the requested increase took effect.

While HWC’s application for rate increase was pending, the PSC (and others) began to look into the adequacy of service provided by the company. On July 19,1977, a public meeting was held in Cascade (within HWC’s general service area) before the Washington County Commissioners. Present, among others, were a PSC Commissioner, PSC general counsel, a number of technical staff personnel from the Commission, and representatives of the Maryland Environmental Service. Based in whole or in part upon what was learned at that meeting, Joseph H. Walter, a PSC Public Service Engineer, wrote a memo to the Commission on August 10, 1977, in which he opined that the HWC water system "is not capable of providing service of acceptable standards to its present customers” and that, although the system storage was sufficient for existing customers, "the water distribution system needs improvement, specifically, replacement of smaller size mains and interconnecting various sections of main to provide more reliable service.”

Upon receipt of the Walter memo, the Commission, on August 30, 1977, opened Case No. 7099 — "In the Matter of the Investigation by the Commission on its own Motion of the Adequacy of Water Service by Highfield Water Company” — with the issuance of Order No. 62553. In its preamble, this Order recited that (1) "[i]n response to several complaints concerning the water service provided by [HWC], [336]*336the Commission’s Engineering Staff conducted an investigation of that Company’s water system,” (2) the Staff Engineer (Walter) had concluded that the system was not capable of providing service of acceptable standards and made certain specific recommendations as to system improvements, (3) under Md. Ann. Code art. 78, § 28 (c), HWC had an affirmative duty to furnish its customers with safe and adequate service, and (4) in view of the deficiencies noted by Walter, the Commission believed that HWC may not be providing its customers with adequate service. Upon that premise, the Order directed HWC to show cause, within 21 days, why it should not be directed to correct the system deficiencies described in the memo, a copy of which was attached to the Order.

A copy of the Order and memo was served on HWC. On September 20,1977, counsel for the company requested that the time for answering the Order be extended until the PSC ruled on the company’s request for rate increase. He said that HWC’s financial data developed in connection with the rate case was prepared without knowledge of the "massive capital improvements” called for in the memo and did not "reflect any capital improvement costs.” He stated further that, "[r]ecognizing the possible need for capital improvements,” HWC had employed a consultant, whose report was attached to the letter. Counsel asked for time to "digest” the information in the report in order to "be in the position to outline speciñc capital improvements for review by the Commission.”

The two-page report attached to counsel’s letter was from John J. Mooney Associates. Its principal conclusions were as follows:

"The Highfield system is presently an admixture of truncated growth, unplanned extensions and dependent supply. The system has been victimized by its satellite nature between two larger water facilities (Ft. Ritchie, Md. and Blue Ridge Summit [Pa.]).
No major rebuilding is possible in this limited [337]*337customer situation where revenues do not produce any borrowing power. Nevertheless, some improvements are essential. I have therefore assessed priorities and present a phased program for your consideration as follows:....” (Emphasis supplied.)

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Cite This Page — Counsel Stack

Bluebook (online)
416 A.2d 1357, 46 Md. App. 332, 1980 Md. App. LEXIS 332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/highfield-water-co-v-public-service-commission-mdctspecapp-1980.