Beaupre v. Green Mtn. Power Corp.

Beaupre v. Green Mtn. Power Corp.  (97-435); 168 Vt. 596; 715 A.2d 1292

[Filed 27-Jul-1998]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-435

                               JUNE TERM, 1998


  Darlene Beaupre, et al.	        }	APPEALED FROM:
                                        }
                                        }
       v.	                        }	Public Service Board
                                        }	
  Green Mountain Power Corporation,	}
  Burlington Electric Department	}	DOCKET NO. 5898
  Central Vermont Public Service	}	
  Corp., et al.	}


       In the above-entitled cause, the Clerk will enter:

       Plaintiffs challenge certain jurisdictional rulings by the Public
  Service Board (PSB).  We consider the appeal premature, and thus decline to
  address the issues raised.

       When they brought this action, plaintiffs were all residential
  electric customers living in separate rented apartments.  Each complained
  of high utility bills arising from electricity being diverted to others in
  their apartment building after the electricity had passed through
  plaintiffs' meters.  To stop the ongoing diversion and to confirm its
  magnitude, plaintiffs brought this action before the PSB.  They requested
  the PSB to mandate defendant utilities to inspect the wiring on the
  customer's side of the meter, and to enjoin their respective landlords to
  permit such an inspection.  Contending that it had evidence of others
  similarly situated, plaintiffs also sought to have the case certified as a
  class action and to have the PSB adopt a rule requiring all regulated,
  metered electric utility services in Vermont to investigate all complaints
  of diversion and remedy the disputed bills.

       The PSB's hearing officer denied plaintiffs' request for an
  injunction, ruling that the Board lacked in personam jurisdiction over
  non-utility third parties.  Furthermore, the officer ruled that the Board
  lacked statutory authority to order electric utilities to inspect
  residential wiring "on the other side of the meter."  Finally, the officer
  found insufficient evidence to begin the rule-making process, and postponed
  its decision to commence a rule-making hearing until sufficient evidence
  indicates a need for such a hearing.  The officer certified these
  preliminary rulings for review by the Board.  It affirmed the officer's
  decision but reiterated the officer's assertion that the board maintained
  jurisdiction generally over billing disputes "arising between customers and
  their utilities."  Class certification is still pending before the PSB. 
  Plaintiffs appeal.

       This Court has long adhered to a policy of avoiding piecemeal appeals. 
  See In re Pyramid Co. of Burlington, 141 Vt. 294, 305, 449 A.2d 915, 921
  (1982).   Generally, we decline to review a decision that is not a final
  disposition of the matter before the lower tribunal.  See In re Taft
  Corners Assocs., 160 Vt. 583, 588, 632 A.2d 649, 652 (1993).  The Vermont
  Administrative Procedure Act, however, permits immediate review of a
  preliminary, procedural, or intermediate agency order.  See V.S.A. §
  815(a).  One may benefit from this provision only if "review of the final
  decision would not provide an adequate remedy, and the filing of the appeal
  does not itself stay enforcement of the agency decision."  See 3 V.S.A. §
  815(a)

  

  (emphasis added); see also Petition of Central Vt. Pub. Serv. Corp., 142
  Vt. 138, 139, 453 A.2d 1108, 1109 (1982).

       The burden lies on the appellant to demonstrate that an appeal from a
  final order would not provide such a remedy.  See id.  In this instance,
  plaintiffs have failed to meet their burden.  Essentially plaintiffs
  brought this action to determine the extent of electricity diversion in
  their former apartments and to recoup any over-payment.  To maximize the
  potential for success on the merits, plaintiffs suggested a variety of
  methods for relief.  In denying their request for an injunction, the Public
  Service Board foreclosed only one avenue.  In its ruling, however, the
  Board held that it possessed jurisdiction to resolve customer billing
  disputes.  As for a new rule, the hearing officer merely reserved judgment
  until the plaintiffs could provide sufficient evidence to warrant invoking
  the rule-making process.  Moreover, plaintiffs' motion for class
  certification is still pending before the Board.  If, upon final
  adjudication, the Board disposes of all of plaintiffs claims without
  providing plaintiff with adequate relief, an appeal would then be
  appropriate.  As the case stands now, plaintiffs still have ample
  opportunity to obtain relief before the PSB.

       Appeal dismissed.



       	BY THE COURT:



       	_______________________________________
  	Jeffrey L. Amestoy, Chief Justice

       	_______________________________________
  	John A. Dooley, Associate Justice

  	_______________________________________
  	James L. Morse, Associate Justice

  	_______________________________________
  	Marilyn S. Skoglund, Associate Justice

       	_______________________________________
  	Matthew I. Katz, Superior Judge
  	Specially Assigned