PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON. Entered: January 24,2012. ROD and KELLEY MCCLANAHAN, Cross Lanes, Kanawha County, Complainants,

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1 CASE NO PSD-C PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON Entered: January 24,2012 FINAL 2/13/2012 ROD and KELLEY MCCLANAHAN, Cross Lanes, Kanawha County, Complainants, V. UNION PUBLIC SERVICE DISTRICT, a public utility, Defendant. RECOMMENDED DECISION Staff. This Order dismisses this case upon the unprotested recommendation of Commission PROCEDURE On July 19, 2011, Rod and Kelley McClanahan (Complainants), Cross Lanes, Kanawha County, West Virginia, filed this formal complaint with the of West Virginia (Commission) against Union Public Service District (District/ Defendant) in which they alleged that the Defendant had caused damage to their driveway during its construction of a sewer system. They alleged that their driveway was not adequately repaired after heavy equipment and heavy materials were transported on it during the Defendant's construction activities. They alleged that the Defendant promised to make proper repairs to their driveway after construction activities were completed. They want their driveway restored to its former pre-construction condition. By Commission Order issued on July 19, 2011, the Defendant was required to either satisfy the formal complaint or file an answer thereto, within ten (10) days of service upon it by certified mail of a copy of the July 19,2011 Commission Order and the formal complaint. On July 26, 2011, the District's attorney, H. Wyatt Hanna, 111, filed a motion for an extension of time in which to answer the formal complaint. He specifically requested an extension of twenty-three (23) days from July 28,2011, until August 19,2011.

2 On July 27,2011, the Commission entered an order granting the Defendant s request for additional time in which to file its answer to the formal complaint. The Commission extended the Defendant s deadline for filing its answer until August 19,2011. On August 19, 2011, the Defendant filed an answer to this formal complaint in which it asserted that the Complainants failed to state a cause of action upon which relief could be granted. The Defendant denied each of the allegations contained in the formal complaint and denied that it had violated any state law regarding the operation of a public utility. The Defendant stated that this complaint was the result of its recent sewer extension project. The Defendant asserted that it had pre-construction and post-construction video tapes of the Complainants driveway and, after reviewing both video tapes, it concluded that the Complainants driveway had been restored to a condition equal to or better than its preconstruction condition. The Defendant requested that the formal complaint be dismissed. On August 23, 2011, Staff Attorney L.R. Sammons, 111, of the Commission s Legal Division filed the Initial Joint Staff Memorandum along with the Initial Memorandum prepared by Technical Analyst Associate Mansour Mashayekhi, of the Commission s Engineering Division. Technical Staff indicated that a field inspection of the site was planned and that discussions would take place with both the Complainants and the Defendant. Technical Staff indicated that final written findings and recommendations would be filed in this case within the proper internal Commission case processing time frame. Legal Staff indicated it would await the outcome of Staff s investigation regarding the Defendant s utility practice. Technical and Legal Staff recommended that this case be referred to the Division of Administrative Law Judges for resolution. By Commission Referral Order entered on August 30, 2011, this case was referred to the Division of Administrative Law Judges for a decision to be rendered on or before February 14, On October 14, 2011, Staff Attorney Sammons filed the Final Joint Staff Memorandum along with the Final Memorandum prepared by Technical Analyst Associate Mashayekhi. Technical Staff reported that it had visited the Complainants residence to examine their driveway. During the field inspection on August 24, 2011, Technical Staff met with Complainant Kelley McClanahan and took photographs. Staff also met with the District s representatives that day and viewed pre-construction and post-construction video tapes of the Complainants driveway. In September, Technical Staff and the Complainants visited the Defendant s office to view the video tapes and photographs together. Technical Staff reported that Thrasher Engineering was the District s engineering firm for the sewer extension project and the contractor was Rover Construction, Inc. Technical Staff learned that the sewer project was still under warranty. Later in September, Technical Staff spoke with Mr. Paul Waddington of Rover Construction. He repaired the Complainants driveway at the direction of Mr. Gary Colb of Thrasher Engineering. Mr. CoIb told him to repair the bad spots on the Complainants driveway with blacktop because the Complainants and their neighbors were nice folks who allowed Rover Construction, Inc., to use their driveway during the sewer construction work. 2

3 Technical Staff explained that the Complainants driveway was more than twenty-five (25) years old and had deteriorated and developed spider-web cracks before the sewer construction project started. The driveway also showed potholes which existed before the sewer construction project started. Staff concluded that Rover Construction, Inc., repaired the potholes after the project as a gesture of goodwill to the Complainants. Technical Staff concluded that there was no significant difference in the condition of the Complainants driveway after the sewer project was completed as compared to the video tape showing the preconstruction condition of the Complainants driveway. Technical Staff concluded that the Defendant s actions were reasonable regarding the Complainants driveway. Technical Staff and Legal Staff recommended that this formal complaint be dismissed. Legal Staff suggested that the parties be given a period of ten (10) days in which to file an objection to the final recommendation of Staff that this case be dismissed. Legal Staff also suggested that, if no objections were filed, a Recommended Decision be entered consistent with the final recommendation of Staff that this case be dismissed. FINDINGS OF FACT 1. Rob and Kelley McClanahan, Cross Lanes, Kanawha County, West Virginia, filed this formal complaint with the Commission against Union Public Service District, in which they alleged that the Defendant had caused damage to their property during construction of a sewer extension project. The Complainants alleged that the Defendant used their driveway during construction of the sewer extension project and failed to restore it to its pre-construction condition, as had been agreed upon by the parties. The Complainants requested that the District be ordered to restore their driveway to its pre-construction condition or better. (See, formal complaint filed July 19,2011). 2. The District denied the allegations set forth in the formal complaint and any wrongdoing. (See, August 19,2011 filing). 3. The District made a pre-construction video of the Complainants driveway and a post-construction video of the driveway illustrating its condition. The Defendant alleged that the Complainants driveway was restored to a condition equal to or better than its preconstruction condition. (See, August 19,2011 filing). 4. Technical Staff made a personal visit to view the Complainants driveway, and reviewed all evidence produced by the Complainants and the Defendant, including video evidence of the pre-construction and post-construction condition of the Complainants driveway. (See, Final Joint Staff Memorandum and Final Memorandum filed October 14,2011). 5. The Defendant s contractor on the sewer extension project, Rover Construction, Inc., repaired potholes in the Complainants driveway with blacktop as a courtesy to the Complainants or as a gesture of good will, in return for its use of the driveway during construction activities. (See, Final Joint Staff Memorandum and Final Memorandum filed October 14,2011). 3

4 ~~ 6. Commission Staff also determined that the potholes on the Complainants driveway existed before the Defendant s construction work began. (See, Final Joint Staff Memorandum and Final Memorandum filed October 14,2011). 7. After concluding its investigation, Commission Staff concluded that there was no significant difference in the condition of the Complainants driveway after the District s sewer extension project was completed as compared to its condition before construction began. (See, Final Joint Staff Memorandum and Final Memorandum filed October 14,2011). 8. Commission Staff recommended that the case be dismissed. (See, Final Joint Staff Memorandum and Final Memorandum filed October 14,2011). 9. As of the date of this Recommended Decision, there has been no objection from any of the parties to Staff s final recommendation that this case be dismissed. (See, case file generally). CONCLUSIONS OF LAW In light of the facts and circumstances described herein, it is reasonable to dismiss this case because there is no evidence that the Defendant violated state law, Commission rule or Commission regulation with regard to its restoration of the Complainant s property to its preconstruction condition. ORDER IT IS, THEREFORE, ORDERED that the formal complaint filed on July 19,2011, by Rob and Kelley McClanahan, Cross Lanes, Kanawha County, West Virginia, against Union Public Service District, be, and hereby is, dismissed, without prejudice. IT IS FURTHER ORDERED that this matter be, and hereby is, removed from the Commission s docket of open cases. IT IS FURTHER ORDERED that the Executive Secretary s Office serve a copy of this Recommended Decision upon all parties by electronic service, if they have filed an e-service agreement with the Commission; by United States Certified Mail, return receipt requested, if they have not filed an e-service agreement with the Commission; and upon Commission Staff by hand delivery. 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 Recommended Decision 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. 4

5 If no exceptions are so filed, this Recommended Decision 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. Any party may request waiver of the right to file exceptions to an Administrative Law Judges's Recommended Decision by filing an appropriate petition in writing with the Executive Secretary. No such waiver will be effective until approved by order of the Commission. CG J:s:cdk a. doc {a - \, /- Cc-Cai)4 (L &R1p i ~ q,j Cecelia Gail Jarrel Administrative Law Judge ll it OT" \ Pubhc Service Commission 5 of West Vuginia