PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON

Transcription

1 PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON At a session of the PUBLIC SERVICE COMMISSION OF WEST VIRGINIA in the City of Charleston on the 4'h day of January CASE NO S-C CABELL-HUNTINGTON HEALTH DEPARTMENT, a county agency, V. Complainant, VILLAGE OF BARBOURSVILLE, a municipality; and HURRICANE PLAZA, INC., a corporation, Defendants. COMMISSION ORDER In anticipation of the January 8, 2019, evidentiary hearing, the Commission issues this Order to address the prefiled testimony and outstanding discovery responses in this case. BACKGROUND This case commenced on December 23, 2016, on the filing of a formal complaint by the Cabell-Huntington Health Department (Health Department) against the Village of Barboursville (Village) requesting that the Commission determine ownership of a broken sewer line. Hurricane Plaza, Inc. (HPI) was later added to the proceeding as a Defendant. On August 1, 2017, the parties filed a settlement agreement. On September 5, 20 17, a Recommended Decision was issued that approved the agreement in resolution of the complaint and removed the case from the Commission active docket. (Rec. Dee. September 5, 2017, Final September 25, 2017). No exceptions to the Recommended Decision were filed by the parties. On June 29, 2018, the Health Department filed a Petition to Reopen this case in order to determine who would be responsible for operation and maintenance of the sewer

2 line running from the Whistle Stop Junction subdivision to the Village's sewer main on U.S. Route 60. The Health Department stated that although the broken sanitary line was remediated, the large sinkhole remained. On July 2, 2018, the Commission granted the Health Department request, and issued an Order reopening this case to determine ownership of the sanitary sewer line that was previously at issue. On July 16, 20 18, Commission Staff filed data requests to the Health Department, the Village and HPI. Responses were due on or before August 7, On August 6, 20 18, the Health Department filed its Response to Staff's First Data Requests. On August 22, 2018, the Commission set a procedural schedule for use in this case. The evidentiary hearing was scheduled for November 19, All parties were directed to file direct testimony by October 23, 2018, and rebuttal testimony by November 13, On October 5,20 18, the Village filed its response to Staffs Second Data Request. On November 14, 2018, the Commission issued an Order that rescheduled the evidentiary hearing to January 8, 20 19, and addressed other outstanding issues. On November 29, 20 18, Staff filed a Motion to Compel the Village and HPI to answer Staff data requests sent to the parties on July 17, The Staff Motion stated, among other things, that several of the responses of the Village were unsatisfactory or non-responsive. On November 30,201 8, HPI filed its response to Staff's First Data Request. On December 7, 2018, the Commission issued an order that granted in-part Staff's Motion to Compel and directed the Village to supplement its discovery response to provide full and complete answers no later than December 14, DISCUSSION Pursuant to the Commission Order issued August 22, 2018, all parties were directed to submit prepared direct testimony by October 23, 20 18, and rebuttal testimony no later than November 13, The Order issued November 14, 2018, discussed prefiled testimony and its purpose and importance. 2

3 Direct prefiled testimony was due in this matter on October 23, If a party seeks to present a position on the issues presented in this case at the evidentiary hearing, that party must file written prepared testimony, as set forth in the procedural schedule. See, Rule 13.3 of the Commission Rules of Practice and Procedure, 150 C.S.R. Series 1. Prefiled direct and rebuttal testimony, and any related exhibits, must contain the entirety of the party s evidentiary case. This allows all parties to have prior notice and knowledge of each party s position and allows for a more expedited hearing. When witnesses take the stand at the evidentiary hearing, therefore, it is not necessary for them to restate the content of their prefiled testimony because the Commission and all the parties should have read that testimony. When the witnesses take the stand, it is for the purpose of allowing the other parties to cross-examine them on their prefiled testimony. Commission Order at 3. The parties were informed that in order to call witnesses to testify at the evidentiary hearing, the party must file prepared testimony in accordance with Procedural Rule Commission Order, November 14, Staff, HPI and the Village filed what each referenced as direct testimony by the established deadline. For its prefiled testimony, HPI submitted transcripts containing its witnesses sworn statements as transcribed by a registered court reporter. Although the transcript format varies from the format of prefiled testimony normally filed in Commission proceedings, it is thorough, addresses prior agreements concerning the sanitary line and presents HPI s total case. Although the format of the testimony taken by transcript is unusual, the Commission acknowledges counsel s effort to comply with the prefiled testimony requirement. The filing by HPI therefore in this instance, will be allowed and treated as prefiled testimony so long as a witness is made available to adopt the testimony as their own and stand for cross examination at the hearing. By stark contrast to HPI s filing, the Village s filing is short and deficient. The Village submitted a document containing nine paragraphs summarizing its positions in this case. The tenth and last paragraph provides six named individuals as witnesses with knowledge of the information stated in the filing. The Village did not identify which witness would testify about which specific issue. The Village s October 25, 2018 filing does not comply with Commission requirements or traditional practice regarding prefiled testimony. Commission Order, November 14, The purpose of prefiled testimony is for a party to provide its positions and identify specific witnesses who will support the specific issues. Prefiled testimony should allow for meaningful prefiled rebuttal testimony and cross-examination at the hearing. For this reason, the testimony of a witness must encompass the positions held by that witness. The Village October 25, 3

4 20 18 filing therefore, will not be accepted as direct testimony. Commission Order, November 14, 20 I8 Order. It is difficult to imagine that the Village could have misunderstood the extensive discussion of prefiled testimony in the Commission s November 14, 2018 Order. Even after the Commission extended the procedural schedule for the hearing and clearly explained the structure and importance of prefiled testimony, the Village made no further filing. It appears, therefore, that the Village may intend to proceed without witnesses. If the Village does intend to present witnesses then, in consideration of the deficient filing and its adverse impact on the due process rights of other parties to this case, the Commission will hear arguments at the hearing on January 8, 2019, about why the Commission should not preclude the Village from presenting witnesses at the hearing. On December 7, 2018, the Commission granted Staff s Motion to Compel and ordered the Village to provide full and complete responses to Staffs Second Data Request. The Village was directed to supplement its responses to Staff questions two (Q2), three (Q3) and four (Q4), no later than December 14, The Village has not filed supplemented discovery responses in this case and has elected not to comply with the Commission Order. A party s failure to provide complete responses to discovery will result in the Commission treating the requested information as adverse to that party s interest. W.Va. R. Civ. Pro. 37(b). The Commission will again order the Village to file the previously compelled discovery responses by noon on Monday January 7, Otherwise the Commission will apply W.Va. R. Civ. Pro. 37(b) in its decision making process. FINDINGS OF FACT 1. In this case, direct testimony and rebuttal testimony were due from all parties on October 23, 2018 and November 13, 2018, respectively. Commission Order, August 22, On October 23, 2018, HPI filed direct testimony with the Commission in the style and format of testimony generally taken in a transcript. 3. On October 25, 2018, the Village filed a summary of the positions of the Village. The summary named six witnesses but did not identify the positions held by the individual persons. 4. No party submitted prefiled rebuttal testimony with the Commission. 5. The Commission granted Staffs Motion to Compel the Village to respond to Staffs Second Data Request and ordered the Village to provide full and complete 4

5 discovery responses to Staff Q2, Q3 and Q4 no later than December 14, Commission Order, December 7, The Village did not file supplemental discovery responses. CONCLUSIONS OF LAW 1. Parties who intend to call a person or persons to testify at the evidentiary hearing must have filed prepared testimony pursuant to Procedural Rule Commission Order, November 14, Because the Health Department did not file direct or rebuttal testimony, it will not be permitted to present a witness at the evidentiary hearing, but will be entitled to cross examine all witnesses. Id. 3. The Commission will treat HPI s filed transcripts as prefiled direct testimony because it follows a question and answer format and supports the positions held by HPI in this matter. Procedural Rule 13.3; Commission Order, November 14, MPI s transcripts will have the evidentiary value afforded to prefiled testimony. Procedural Rule The Village filing dated October 25, 2018, will not be accepted as direct testimony because it does not comply with the requirements ofprefiled testimony and does not accord due process to the other parties. Procedural Rule 13.3; Commission Order, November 14, Because the Village summary is not pre-filed testimony of witnesses, and in view of the due process rights of the other parties to this case, if the Village intends to present witnesses, the Commission should hear arguments at the hearing on January 8, 2019, about why it should not preclude the Village from presenting witnesses at the hearing. 7. The Village failed to comply with Commission Order dated December 7, 20 18, by not filing supplemental discovery responses to Staffs Second Data Request Q2, Q3 and Q4. 8. A party s failure to provide complete responses to discovery will result in the Commission treating the requested information as adverse to that party s interest. W.Va. R. Civ. Pro. 37(b). 5

6 ORDER IT IS THEREFORE ORDERED that the matter will proceed to evidentiary hearing on January 8, 2019, at 9:OO a.m., as previously scheduled. IT IS FURTHER ORDERED that the Hurricane Plaza, Incorporated filing dated October 23, 2018, shall and will be accepted as prefiled direct testimony. IT IS FURTHER ORDERED that the Village of Barboursville filing dated October 25, 201 8, is not accepted as prefiled direct testimony. IT IS FURTHER ORDEED that the parties at the January 8, 2019 hearing shall be prepared to argue whether the Commission should preclude the Village from presenting witnesses at the hearing. IT IS FURTHER ORDEED that the Village of Barboursville shall file supplemental discovery responses in accordance with the December 7, Cornmission Order on or before 12:OO p.m. Monday, January 7, IT IS FURTHER ORDEFED that the Executive Secretary of the Commission serve a copy of this Order by electronic service on ail parties of record who have filed an e-service agreement, by facsimile if available, and by United States First Class Mail on all parties of record who have not filed an e-service agreement, and on Commission Staff by hand delivery. A True Copy, Teste, Ingrid Ferrell Executive Secretary NNT/rm cg 6