LAW OFFICES OF DAWN WHITE, L.C. Case no E-C Florin Land Trust v. Potomac Edison Company dba Allegheny Power

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1 LAW OFFICES OF DAWN WHITE, L.C. DAWN WHITE Attorney and Counselor at Law Ms. Sandra Squire, Executive Secretary Public Service Commission of West Virginia Post Office Box 8 12 Charleston, West Virginia July 3 1,2007 Dear Ms. Squire: Case no E-C Florin Land Trust v. Potomac Edison Company dba Allegheny Power Attached please find the Reply Brief of Florin Land Trust for filing in the captioned case. The original Reply Brief together with twelve copies, has been forwarded by United States mail. Additional copies have been provided to counsel of record by facsimile and United States mail, as reflected in the certificate of service. ( Yours sincerely, Dawn White cc.: John R. Auville, Esquire Edward G. Kennedy, Esquire P.O. Box 120, Berkeley Springs, West Virginia, Phone and Fax: (304)

2 PUBLIC SERV ICE COMMISSION OF WEST VIRGINIA, CHARLESTON FLORIN LAND TRUST, Petitioner, vs. THE POTOMAC EDISON COMPANY dba ALLEGHENY POWER COMPANY, Respondent. REPLY OF FLORIN LAND TRUST TO BRIEFS OF POTOMAC EDISON COMPANY dba ALLEGHENY POWER and STAFF OF PUBLIC SERVICE COMMISSION The Public Service Commission has focused the Petitioner s complaint upon the issue of whether Respondent (hereinafter referred to as Allegheny Power ) engaged in unreasonable practices in providing electric service to Florin Land Trust. The actions complained of are described within four categories, all of which Petitioner contends should be adjudged in the circumstances known to the parties at the time of the incidents. 1. Allegheny Power failed to communicate with Petitioner in a timely manner Allegheny Power received a request for service to Petitioner s property on November 25, 2003 (Tr. p. 17) and Respondent was made aware of the need to place utility lines underground (Tr. p. 20). Petitioner began driveway construction on July 23,2004 (Tr. p. 199). For a period of three months, Petitioner s counsel (hereinafter sometimes Dawn White ) repeatedly telephoned and faxed Ron Thomas, Lines Engineer and Designer, requesting confirmation of the conduit location (FLT 2,7, S), receiving no response notwithstanding the expressed urgency of Petitioner s need for an answer (Tr. pp ). 1

3 - --7 r -,si-, On October 29,2004, Respondent s Electrical Operations Manager, Berry Morefield, had a lengthy on site meeting with Dawn White to resolve primarily the lack of communication on provision of service (Tr. p. 101). Mr. Morefield failed to follow up with Petitioner on any of her concerns or to alert Petitioner that he was no longer involved in the matter (Tr. pp. 115, ). Dawn White s communications were redirected to Michael McGinnis (Tr. pp. 125 and 146), who knew there was a breakdown in communication (Tr. p. 140) but deliberately elected not to contact Petitioner regarding the stated concerns (Tr. p. 142). Ron Thomas claims that he returned Dawn White s calls and left messages for her, but this is reliably contradicted by Petitioner s faxes FLT 5, 7 8, and Dawn White s written statement to Berry Morefield: I can state unequivocally that Mr. Thomas has never once in the almost twelve months we have been pursuing installation, volunteered a response to any communication. (FLT 13, Tr. p. 237). Although they held management positions, McGinnis and Morefield were no better in meeting Dawn White s requests for information and responses. McGinnis continued to delegate all responsibility for Petitioner s installation to Ron Thomas (Tr. p. 149), even though he knew of Thomas delinquency in the matter (Tr. p. 137). Allegheny Power was aware for months of the nature of Petitioner s concerns and the fact that the company s failure to respond would give rise to significant monetary damages. There is scant evidence of any communication from Allegheny Power to Petitioner, and an unexplained four month delay in mailing when they did make contact (Tr. pp. 80, ,219). The Public Service Commission Staff ( Staff ) brief refers to a breakdown in communication. This would more accurately be described as a lack of communication from Respondent, since the record is replete with correspondence and faxes from Petitioner to 2

4 Allegheny Power. The evidence presented at the hearing and attorney Auville s capable examination of Ron Thomas (Tr. pp ), render it disingenuous for Staff to claim it does not know what caused the breakdown and whether the Company could have done anything different [ly]. Allegheny Power ignores the issue in its brief because it has no defense to the charge. 2. Property rights were disregarded in Allegheny Power s location of the power pole and other equipment Dawn White gave copious notice of the factors to be considered in the location of the power pole to serve Petitioner s property. These were not issues of personal preference but included the prohibitions of the Covenants (Tr. p. 9), the driveway boundary easement over the adjoining parcel (Tr. p. 148), the need for utility lines to be underground (Tr. pp. 20,22), and the entrance requirements of the Department of Highways (Tr. p. 61). The evidence strongly suggests that Ron Thomas had done little or nothing toward implementing service to Petitioner or Messersmith, when matters were accelerated by completion of two Messersmith homes ready for immediate occupancy and Berry Morefield s meeting with Dawn White. Respondent then became intractable in its adoption of Ron Thomas expediency of hooking up both customers to a single power pole. Mr. Morefield had training as a designer equal to that of Respondent s line engineer, Ron Thomas (Tr. p. 99) and was qualified to agree the relocation of the power pole at his October 29, 2004 meeting with Dawn White. He further claimed authority to resolve the impasse to provision of service. (see FLT 13, Tr. pp ). Morefield s later recanting of elements of his agreement with Dawn White provided patently insufficient excuses as to why the promised action was no longer possible (Tr. pp ). 3

5 Allegheny Power refers in its brief to an existing Allegheny Power right of way as facilitating the provision of service, but there has never before been any mention of such. The Duckwall pole to which Petitioner s power pole was connected, was replaced with another as part of the provision of service to Petitioner and Messersmith. The replacement pole could have been moved within thed Duckwall right of way without the consent of any third party. The Florin Land Trust power pole was in fact relocated several feet at the last minute without any design problems, because it was in Mr. McGinnis best interest (Tr. pp ). This fact adequately illustrates the arbitrary nature of Respondent s refusal to accommodate protection of the mulberry trees, which could have been saved with little more than a minor adjustment in the angle of the power line. Mr. Messersmith s power could have been served underground from the Yost property (Tr. p. 229) without cutting any trees because the route to the original intended location of Messersmith s power pole (as opposed to provision of service to Petitioner) was along the old roadbed and across clear pasture. Mr. Messersmith could also have been afforded overhead service to the original location from the adjacent McLaughlin parcel (Tr. p. 229) without the cutting of any protected trees. Ron Thomas failed to diligently follow through on either on these opportunities, and Allegheny Power provided inadequate supervision of Thomas performance of his duties. Allegheny Power seeks in its brief to excuse its destruction of the trees by claiming they were within the no obstruction area of the Highways entrance permit, and therefore on borrowed time. The power pole is within the same no obstruction area, but Allegheny Power testifies that it cares little about later relocation of the pole (Tr. pp ) notwithstanding the thousands of dollars cost this would reimpose on the customer as illustrated by Petitioner s 4

6 I, invoices (FLT 25). Similar disregard for customer interests is reflected in the intransigence of Allegheny Power s refusal to even consider relocation of the junction box to the other side of Petitioner s gate to avoid a risk to employee safety (Tr. pp ). The record conclusively evidences the arrogance of Respondent in its dealings with Petitioner and Messersmith. Allegheny Power could have obtained service from adjoining landowners but failed to do so. Condemnation was not requested by Petitioner but was proposed by Berry Morefield, who confirmed that it was justified by the circumstances (FLT 13 and 18). Condemnation proceedings are perfunctory and provide immediate access upon filing. This could have been easily achieved within the twelve days that Ron Thomas was willing to wait to meet with Messersmith to secure a written right of way, or in the two weeks Dawn White spent in England before the trees were felled and the conduits and spillway destroyed. Condemnation would perhaps have been inconvenient because it required the Respondent to expend legal fees and the minimal cost of compensation, but was certainly more expedient and would not have delayed service as Allegheny Power claims in its brief. Instead, Respondent took action that it had been notified would cost Petitioner thousands of dollars worth of damages. 3. Allegheny Power willfully breached its agreement with Petitioner Berry Morefield agreed on behalf of Respondent that the power pole would be relocated to a location that would protect the trees. Dawn White acted in reliance upon that commitment, and instructed her excavator accordingly. The negotiated agreements further provided a pragmatic solution to the provision of service for Messersmith, and the details of that meeting were contemporaneously documented (FLT 13). Allegheny Power does not deny that they 5

7 received the sixteen page facsimile, but allege only that none of the witnesses read it, thereby excusing their failure to communicate with Petitioner (Tr. pp , 136). Allegheny Power s failure to honor the agreed arrangements is acknowledged in Morefield s letter to Dawn White ofnovember 18,2004 (FLT 15). Neither Staff nor Allegheny Power has any redeeming argument on the subject of this breach, nor Morefield s claim that Bob Messersmith gave permission to cut the trees. Staff states that it is not persuaded by exhibits FLT 17 and 18, but offers no reason for this position. Allegheny Power has had no difficulty in securing other documents signed by Mr. Messersmith should sign any other document, but failed to obtain his written consent to the felling of the trees in the interim two and one-half years. Allegheny knew when Ron Thomas met with Bob Messersmith to execute the right of way that the tree cutting was a major concern, yet the matter of consent was not documented. 4. Allegheny Power was grossly negligent in its provision of a right of way agreement Petitioner was many, many times promised a right of way agreement, and Morefield s letter of November 19,2004 urged immediate execution of the agreement as a precondition to the provision of service (FLT 15). Petitioner submitted a right of way agreement to Ron Thomas on September 14,2004 (Tr. p. 36) and was given no reason why it was ignored other than Allegheny Power wanted to use its standard document., Petitioner had to wait an unreasonable further sixteen months for receipt of that item. On December 7,2004, Petitioner notified Mr. McGinnis that she had been promised receipt of a right of way agreement on three previous occasions (FLT 1 l), yet he did not bother to monitor progress on issuance of the document. McGinnis left it to Ron Thomas (Tr. p ). No explanation is provided for the fact that two further letters of December 15,2004 and 6

8 December 29,2004 from Thomas and McGinnis, both purporting to enclose rights of way for signature by Petitioner, were sent in the same envelope with no enclosure and not received by Dawn White until mid April 2005 (Tr. pp ). McGinnis states that Petitioner could not get a service hook up until the right of way was signed (Tr. p. 152), and this position is endorsed by Berry Morefield (FLT 15). The Trustee for Florin Land Trust signed the right of way agreement prepared by Allegheny Power on April 24, 2005 (PE 4) immediately following its receipt by Dawn White. Petitioner reasonably believed it could not proceed with the electrical inspection until the right of way agreement had been signed. 5. Delay in the provision of service was caused by lack of the right of way agreement Allegheny Power contends that it had no responsibility for the provision of service until Petitioner obtained an inspection, but its actions or inactions were an intervening factor in preventing Petitioner s electrician from requesting the inspection (Tr. p. 220). Respondent cannot now claim a delay caused by its own malfeasance as a defense. Petitioner was entitled and indeed required to mitigate its damages; Petitioner did so by completing all phases of construction capable of performance without electrical power. That receipt of the right of way agreement occurred when the geothermal header pit was about to be closed is no more than coincidental, although the timing was most unfortunate from Petitioner s point of view. The priority of the right of way agreement is emphasized in McGinnis letter of December 6,2004 (FLT 19), which did not include the necessity for an inspection in his list of the three items required to get service. Mr. McGinnis claims this was an oversight (Tr. p. 176). Allegheny Power would have this tribunal ignore all previous events, and claims lack of inspection as the sole reason for the delayed provision of service. 7

9 Even after Petitioner had satisfied all preconditions to the provision of service, there was a further delay of eleven days [not eight days as Dawn White erroneously testified at the hearing], before power was provided to the construction site, and this only because Mr. McGinnis belatedly recognized Petitioner s need as one of hardship (Tr. p. 170)! This is in contrast to McGinnis testimony that service could have been provided to the meter socket the day after Allegheny Power received a signed and notarized right of way agreement (Tr. p. 141). In the four months after Allegheny Power had in fact received the fully executed agreement and payment of their fee, Petitioner s electrician remained in close contact with Ron Thomas, who was fully aware of Petitioner s on site predicament. No suggestion was ever made about scheduling the hookup so that power was available at the meter socket without further delay. Such a provision would have provided an immediate power source for the testing of the lines in the geothermal header pit within hours of the Sunday electrical inspection. 6. Temporary service was preconditioned on the right of way agreement Petitioner enquired about the provision of temporary service on October 7,2004 but received no response from Allegheny Power (Tr. pp ). Petitioner wrote to Ron Thomas: If we supply a temporary pole, how soon can you schedule hook-up? (FLT 7) A response was requested by return because of the urgency of Petitioner s need, but none was ever received. Three weeks later, Berry Moorefield led Dawn White to believe that permanent service would be provided within a matter of days, and in reliance upon his commitment, she anticipated there would be water for the trees and the ongoing masonry work (Tr. p. 214). Michael McGinnis, the Operations Manager for the Berkeley Springs area, admits that he was aware of the pending tree delivery (Tr. p 145 [sic] pre-delivery) when he wrote to Petitioner on December 6,2004 (FLT 19), as well as the status of construction at the house (Tr. p. 146). 8

10 With these factors in mind, Allegheny Power s representative states that he would have taken the permanent power route (Tr. p. 146). This statement is conclusive as a counter to all argument by Staff and Allegheny Power that Petitioner should have requested temporary service. Given all of the facts, Allegheny Power s own trained and experienced manager, would have pursued the same objective as Petitioner in trying to gain permanent service, and almost certainly would have eliminated the further eight month wait that was Petitioner s fate. The temporary service banner waived by Respondent and Staff is nothing more than a subterfuge to deflect attention from chronic mismanagement and poor service. Conclusion Petitioner did every thing asked of it by Allegheny Power, and more. The construction had proceeded to a point where the conduit and meter socket were installed, and service could have been provided in December 2004, in time to power the wells, water the specimen trees and supply the needs of contractors. Petitioner contacted Allegheny Power well in advance of excavation and repeatedly requested answers to reasonable questions. The missing elements were Allegheny Power s willingness to communicate information known only to its personnel, to respond to Petitioner s repeated enquiries, and to participate in the provision of power. In response to the charges, Allegheny has offered the impeached testimony of Ron Thomas with his contradictory and contrived telephone log and time line, Berry Moorefield as a dissociated straw man of ephemeral commitments; Michael McGinnis, his incorrect assumptions and inactive management style; and Dave Morrison, who is young enough to blithely discount thirty year old trees as de minimus in his scheme of things. 9

11 The contentions of Respondent and Staff appear to be ill advisedly balanced on information sourced solely from Ron Thomas, whose negligence first gave rise to Petitioner s angst. Mr. Thomas proffered telephone logs that were incomplete but supplemented by after- the-fact recollection (Tr. pp. 48, 52-53). Working from Mr. Thomas submission, Mr. McGinnis wrote an executive summary that was incomplete (Tr. pp ), replete with mischaracterization and unverified (Tr. pp ), and forwarded this with altered file documents (Tr. pp ) to Staff. Ralph Clark reviewed Allegheny Power s report on behalf of Staff. Mr. Clark states that he independently verified McGinnis report through conversation with Mr. McGinnis and a letter written by McGinnis (Tr. pp l), admittedly arriving at incorrect conclusions (Tr. pp ). Petitioner tendered a comprehensive, detailed, contemporaneous written record of events over an eighteen month period. With the single exception of Staffs casting of doubt in its brief, without foundation or explanation, upon the letters written by the Messersmiths, none of those exhibits has been attacked or challenged by Respondent or Staff. The preponderance of the evidence strongly favors Petitioner s argument that the actions of Allegheny Power in providing service to its property, were unreasonable and unacceptable business practice for a public utility. Respectfully submitted, FLORIN LAND TRUST By counsel Dawn White, WVSB No Law Offices of Dawn White, L.C. Post Office Box 120 Berkeley Springs, West Virginia (304)

12 Certificate of Service I, Dawn White, counsel for Petitioner Florin Land Trust, hereby certify that I have this 3 1 st day of July, 2007, delivered a true and accurate copy of Petitioner s Reply to the Briefs of Allegheny Power and Public Service Commission Staff, by facsimile and by U. S. mail, postage prepaid, addressed to the undersigned counsel of record: Edward G. Kennedy, Esquire Allegheny Power 800 Cabin Hill Drive Greensburg, Pennsylvania John R. Auville, Esquire Public Service Cornmission of West Virginia Post Office Box 812 Charleston, West Virginia