IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1998 Term
WEST VIRGINIA HIGHLANDS CONSERVANCY, INC., SIERRA CLUB,
WEST VIRGINIA WILDLIFE FEDERATION, CHUCK MERRIT,
AND JAMES M. SCONYERS,
THE PUBLIC SERVICE COMMISSION OF WEST VIRGINIA,
AND ALLEGHENY ENERGY SYSTEM, INC.,
Appeal from the Public Service Commission
P.S.C. Case No. 97-1325-E-C
Submitted: October 7, 1998
Filed: December 14, 1998
Michael & Kupec Charleston, West Virginia
Clarksburg, West Virginia Attorney for Public Service
Attorney for Appellants Commission
James K. Brown
Michael A. Albert
Lee van Egmond
Jackson & Kelly
Charleston, West Virginia
Attorneys for Allegheny Energy
The Opinion of the Court was delivered PER CURIAM.
JUSTICE STARCHER dissents and reserves the right to file a dissenting Opinion.
JUSTICE MCGRAW did not participate in the decision of this case.
SYLLABUS BY THE COURT
1. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep't, 195 W. Va. 573, 466 S.E.2d 424 (1995).
2. "The Public
Service Commission of West Virginia has no jurisdiction and no power or authority except
as conferred on it by statute and necessary implications therefrom, and its power is
confined to regulation of public utilities. It has no inherent power or authority."
Syl. Pt. 2, Wilhite v. Public Service Comm'n, 150 W. Va. 747, 149 S.E.2d 273 (1966).
3. "The test as to
whether or not a person, firm or corporation is a public utility is that to be such there
must be a dedication or holding out either express or implied that such person, firm, or
corporation is engaged in the business of supplying his or its product or services to the
public as a class or any part thereof as distinguished from the serving of only particular
individuals; and to apply this test the law looks at what is being done, not to what the
utility or person says it is doing." Syl. Pt. 3, Wilhite v. Public Service Comm'n,
150 W. Va. 747, 149 S.E.2d 273 (1966).
Per Curiam:See footnote 1 1
Petitioner West Virginia
Highlands Conservancy, Inc. ("Conservancy")See
footnote 2 2 appeals from the December 30, 1997, order of the Public
Service Commission ("Commission"), wherein the Commission concluded that it was
without jurisdiction to conduct a post facto review of a real estate transaction involving
land situated in the Blackwater River Canyon. Having carefully reviewed the statutes at
issue, as well as all applicable law, we determine that the Commission did not err in its
ruling and accordingly, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Conservancy filed a complaint with the Commission on September 30, 1997, against Allegheny Power System ("Allegheny"),See footnote 3 3 seeking to set aside a real property sale that had transpired seven months earlier on February 18, 1997.See footnote 4 4 The land at issue had been held since 1918 by West Virginia Power and Transmission Company ("West Virginia Power"), a West Virginia real estate holding company.See footnote 5 5 As grounds for its complaint, the Conservancy alleged that Allegheny was required by the provisions of West Virginia Code § 24-2-12 (1992), to obtain the Commission's approval before the land was sold.See footnote 6 6 While the grantor in the real estate transaction, West Virginia Power, is concededly not a public utility, the Conservancy advanced the position that Allegheny was nonetheless responsible for the sale of such property as the parent company of West Penn Power Company ("West Penn"), who is the parent company of West Virginia Power. See supra note 5. Based on the recent corporate reorganization of Allegheny, which involved managerial streamlining and the consolidation of various operations with the goal of promoting a "one company concept," the Conservancy contended that Allegheny is the same company that provides utility services to West Virginia customers. As such, the Conservancy argues that the provisions of West Virginia Code § 24-2-12, requiring Commission approval of various public utility transactions, should apply to Allegheny.
In response to the
complaint filed against it, Allegheny moved to dismiss the Conservancy's complaint on the
grounds that Allegheny is not a public utility subject to the Commission's jurisdiction.
Asserting that it is a public utility holding companySee
footnote 7 7 prohibited by federal law from engaging in public utility
services,See footnote 8 8 15 U.S.C.
§ 79d(a) (1994), Allegheny argued that the jurisdictional reach of the Commission
did not extend to it or West Penn or West Virginia Power.
By order dated December
30, 1997, the Commission stated its finding that none of the entities involved in the
Blackwater River Canyon land sale were public utilities regulated by the Commission. In
addition, the Commission determined that no West Virginia public utility assets were
involved in the disputed transaction. Concluding that it was without authority to review
the transaction in issue, the Commission dismissed the complaint and refused to grant the
Conservancy's request for permission to take the deposition of Alan J. Noia, Allegheny's
President and chief executive officer.See footnote 9 9 The Conservancy appeals from the Commission's ruling that it has no
jurisdiction over Allegheny, as well as the denial of its discovery request.
II. Standard of Review
Unlike most appeals from Commission rulings, this case does not fall within the three-pronged standard of review prototype set forth in syllabus point one of Central West Virginia Refuse, Inc. v. Public Service Commission, 190 W. Va. 416, 438 S.E.2d 596 (1993).See footnote 10 10 When, as in the instant case, the Commission's denial of jurisdiction is the basis for the appeal, the paradigm for reviewing Commission rulings is of little help. See West Virginia-Citizen Action Group v. Public Service Commission, 175 W. Va. 39, 42-43, 330 S.E.2d 849, 852 n.6 (1985). More applicable to this case, which presents an issue of jurisdictional denial, is our recognition in syllabus point one of Appalachian Power Co. v. State Tax Department, 195 W. Va. 573, 466 S.E.2d 424 (1995), that "[i]nterpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review."
While the parties are in
agreement that jurisdictional issues invoke de novo review, Allegheny asserts that
"[i]nterpretations of statutes by bodies charged with their administration are given
great weight unless clearly erroneous." Appalachian Power, 195 W. Va. at 588, 466
S.E.2d at 439 (citing Lincoln County Bd. of Educ. v. Adkins, 188 W. Va. 430, 424 S.E.2d
775 (1992), syl. pt. 7, in part). With reference to the Commission's finding that
Allegheny is not a public utility, Allegheny argues that the Commission's findings of fact
cannot be reversed under Boggs v. Public Service Commission, 154 W. Va. 146, 174 S.E.2d
331 (1970), absent a conclusion that such findings are contrary to the evidence or that
they lack supporting evidence. See id. at 147, 174 S.E.2d at 332, syl. pt. 5, in part
(citing United Fuel Gas Co. v. Public Service Comm'n, 143 W. Va. 33, 99 S.E.2d 1 (1957)).
Against these principles, we proceed to consider whether the Commission correctly
determined that it lacked jurisdiction to review the subject land transaction.
Our determination of whether the Commission has authority to review the land sale at issue necessarily requires an examination of the nature of the Commission's jurisdiction. In syllabus point two of Wilhite v. Public Service Commission, 150 W. Va. 747, 149 S.E.2d 273 (1966), we stated: "The Public Service Commission of West Virginia has no jurisdiction and no power or authority except as conferred on it by statute and necessary implications therefrom, and its power is confined to regulation of public utilities. It has no inherent power or authority." Thus, the Commission is without power to consider issues not expressly included within its grant of legislative authority.
The jurisdictional question presented in this case arises from the Conservancy's position that Allegheny failed to comply with the provisions of West Virginia Code § 24-2- 12. That statute provides, in pertinent part:
Unless the consent and approval of the public service commission of West Virginia is first obtained: . . . (c) no public utility subject to the provisions of this chapter, . . . may assign, transfer, lease, sell, or otherwise dispose of its franchises, licenses, permits, plants, equipment, business or other property or any part thereof, but this shall not be construed to prevent the sale, lease, assignment or transfer by any public utility of any tangible personal property which is not necessary or useful, nor will become necessary or useful in the future, in the performance of its duties to the public[.]
W. Va. Code § 24-2-12(c) (emphasis supplied). By legislative fiat, this consent and approval provision only applies to property dispositions contemplated by public utilities.See footnote 11 11
Our inquiry thus proceeds to the issue which is, in fact, the crux of this
case--whether Allegheny comes within the statutory definition of "public
The term "public
utility" is defined by West Virginia Code § 24-2-1 (1992) as "any person
or persons, or association of persons, however associated, whether incorporated or not,
including municipalities, engaged in any business, whether herein enumerated or not, which
is, or shall hereafter be held to be, a public service." The following amplification
of that definition was stated in syllabus point three of Wilhite:
The test as to whether or not a person, firm or corporation is a public utility is that to be such there must be a dedication or holding out either express or implied that such person, firm, or corporation is engaged in the business of supplying his or its product or services to the public as a class or any part thereof as distinguished from the serving of only particular individuals; and to apply this test the law looks at what is being done, not to what the utility or person says it is doing.
150 W. Va. at 748, 149 S.E.2d at 274, syl. pt. 3.
The Conservancy's position that Allegheny does come within the definition of a public utility sufficient to invoke the provisions of West Virginia Code § 24-2-12 is rooted in its view that Allegheny's corporate restructuring significantly altered the manner in which Allegheny and its subsidiaries conduct business. As a result of a corporate reorganization that Allegheny underwent in 1995, Allegheny now utilizes a single management team to direct both its functions as a public utility holding company and the operations of its three utility subsidiaries.See footnote 12 12 All the operating, engineering, marketing, and other functions previously performed on a separate basis by its utility subsidiaries are now combined and managed through Allegheny Power Service Corporation ("APSC"), a wholly-owned subsidiary of Allegheny. See supra note 12. To illustrate, whereas previously each of the operating utility subsidiaries had individual employees, those same workers are now designated as employees of APSC. See id. Similarly, customers of the operating utility subsidiaries no longer get monthly utility bills from Monongahela Power or Potomac Edison or West Penn; instead, their bills designate Allegheny as the utility provider. Contending that Allegheny has taken complete control of the operations of its utility subsidiaries, the Conservancy argues that this Court should look beyond the corporate structures of Allegheny and its subsidiaries to find that Allegheny is operating as a public utility.See footnote 13 13
In support of its position, the Conservancy suggests that the factors typically used for deciding whether to "pierce the corporate veil" for purposes of holding shareholders personally liable for the actions of a corporation should analogously be utilized to find the existence of jurisdiction in this case. See Laya v. Erin Homes, Inc., 177 W. Va. 343, 352 S.E.2d 93 (1986).See footnote 14 14 According to the Conservancy, the decisions of this Court addressing when parent and subsidiary corporations can be viewed as "one entity" for purposes of personal jurisdiction provide additional support for its position that the Commission has jurisdiction over Allegheny. See Bowers v. Wurzburg, 202 W. Va. 43, 501 S.E.2d 479 (1998); State ex rel. Bell Atlantic v. Ranson, 201 W. Va. 402, 497 S.E.2d 755 (1997); Norfolk Southern Ry. Co. v. Maynard, 190 W. Va. 113, 437 S.E.2d 277 (1993).
In response to the Conservancy's assertion that Allegheny has complete control of its utility subsidiaries, Allegheny states that federal law expressly prohibits public utility holding companies such as Allegheny from owning or acquiring utility assets. See 15 U.S.C. § 79d(a). Federal law also proscribes a public utility holding company from engaging in any acts that would cause it to be a "public utility." 15 U.S.C. § 79i. In explanation of its corporate reorganization, Allegheny states that the reorganization was effectuated for the joint purposes of cost containment and to meet competition in the wake of pending utility deregulation. Allegheny emphasizes that the separate corporate status of the utility subsidiaries has not been affected or altered as a result of the reorganization. There has been no transfer of physical assets among the separate companies; no new legal entities were created; and no existing legal entities were dissolved. The rate bases of the various utility subsidiaries remain separate and distinct, as always. Expenses are calculated separately for each utility subsidiary. West Virginia property, business and occupation, and sales and use tax returns are filed on an individual basis by each utility and non-utility subsidiary. Separate shareholder meetings are held and separate minutes are maintained. As before, each utility subsidiary maintains its own customer rates. In short, Allegheny asserts that each utility subsidiary complies with all the requirements necessary to maintain its separate corporate status.
Conservancy's contention that jurisdiction can be achieved through the doctrine of
corporate veil piercing, Allegheny asserts that such doctrine is inapposite. Typically,
veil piercing is a method by which liability is extended from the corporation to the
individual shareholders for the purpose of preventing fraud or to right a particular
wrong. See Laya, 177 W. Va. at 346-50, 352 S.E.2d at 97-100. The Commission argues that
use of the veil piercing doctrine for the purpose of creating continuing subject matter
jurisdiction over a public utility holding company, as the Conservancy advocates, is
completely inconsistent with the rationale of such doctrine. Whereas veil piercing enables
liability to be asserted for the purpose of correcting a specific wrong or to prevent
fraud notwithstanding corporate rules limiting liability, the use of such doctrine in the
manner proposed by the Conservancy would involve a determination that the Commission has
subject matter jurisdiction over a particular corporation, not just in this case, but in
every future transaction that involves any subsidiary of Allegheny. In a similar vein,
Allegheny contends that the Conservancy's reliance on those cases where veil piercing
factors have been employed for purposes of determining whether personal jurisdiction could
be asserted over a parent corporation whose subsidiary had committed a wrong in this state
is equally untenable. See Bowers, 202 W. Va. 43, 501 S.E.2d 479; Bell Atlantic, 201 W. Va.
402, 497 S.E.2d 755; Norfolk Southern Ry., 190 W. Va. 113, 437 S.E.2d 277.
Upon examination, the
Conservancy's arguments in support of veil piercing for the purpose of creating
jurisdiction prove specious. Critically, the principles upon which veil piercing is
predicated--liability may be asserted when the corporate form is being used to perpetrate
harm or injustice--do not transpose to support the creation of subject matter
jurisdiction. This is especially true where, as here, subject matter jurisdiction is
created by, and defined by, statute. See W. Va. Code § 24-2-1. The Commission
observes that the Conservancy has failed to cite even one case in which corporate veil
piercing was used against a public utility holding company to assert subject matter
jurisdiction on the theory that the holding company was operating as a public utility, as
the Conservancy urges this Court to conclude in this case. Because liability and subject
matter jurisdiction are very different legal concepts, no other court has been persuaded
to apply the corporate veil piercing doctrine in the fashion advocated by the Conservancy.
This critical distinction
concerning the uniqueness of subject matter jurisdiction proves equally fatal to the
Conservancy's attempt to rely on decisions issued by this Court that addressed whether a
company was doing business within this state under a minimum contacts analysis. In each of
those decisions--Bowers, Bell-Atlantic, and Norfolk Southern-- the issue was whether a
company was doing business within this state sufficient to permit this state to exercise
personal jurisdiction over the parent corporation in connection with claims predicated on
traditional tort or contract theories. None of those cases involved the situation
presented in the case sub judice where subject matter jurisdiction is expressly governed
by statute.See footnote 15 15 Moreover,
the jurisdictional concerns and attendant issues raised in a minimum contacts analysis
necessarily involve personal jurisdiction, a beast significantly distinct from the issue
of subject matter jurisdiction that is under consideration here. Since the Commission's
jurisdiction is expressly limited by statute to individuals or companies qualifying as
public utilities, facts that are critical to a veil piercing analysis are not
determinative of whether Allegheny qualifies as a public utility. See W. Va. Code
§ 24-2-1. Thus, we agree with Allegheny that the cases relied on by the Conservancy
as support for its veil piercing theory are both distinguishable and inapplicable.
Even assuming, arguendo,
that the doctrine of veil piercing was applicable for purposes of establishing subject
matter jurisdiction, it appears that the law would still not support veil piercing under
the facts of this case. While the law presumes that two separately incorporated businesses
are distinct entities, United States v. Bestfoods, _U.S.__, __, 118 S.Ct. 1876, 1888
(1998), this presumption can be disregarded when the corporate form is being used to
perpetrate injustice, defeat public convenience, or justify wrongful or inequitable
conduct. Laya, 177 W. Va. at 347, 352 S.E.2d at 97 (quoting Southern States Coop., Inc. v.
Dailey, 167 W. Va. 920, 930, 280 S.E.2d 821, 827 (1981)). While a variety of factors are
typically examined to determine whether veil piercing is warranted,See footnote 16 16 the Conservancy contends that veil
piercing is required in this case based on the use of dual officers and directors, its use
of a trade name ("Allegheny") for operational purposes, and its employment of
streamlined management. In Bestfoods, the United States Supreme Court made clear that
"'it is entirely appropriate for directors of a parent corporation to serve as
directors of its subsidiary, and that fact alone may not serve to expose the parent
corporation to liability for its subsidiary's acts.'" __ U.S. at __, 118 S.Ct. at
1888 (quoting American Protein Corp. v. AB Volvo, 844 F.2d 56, 57 (2nd Cir.), cert.
denied, 488 U.S. 852 (1988)). Moreover, the Supreme Court recognized in Bestfoods that
those activities "which are consistent with the parent's investor status, such as
monitoring of the subsidiary's performance, supervision of the subsidiary's finance and
capital budget decisions, and articulation of general policies and procedures" do not
indicate that the parent corporation is in fact controlling the subsidiary. __ U.S. at __,
118 S.Ct. at 1889 (quoting Oswald, Bifurcation of the Owner and Operator Analysis under
CERCLA, 72 Wash. U.L.Q. 223, 282 (1994)). The United States Supreme Court reasoned in
Bestfoods that veil piercing is proper when "a facility is so pervasively controlled
by its parent [corporation] for a sufficiently improper purpose." Id. at __, 118
S.Ct. at 1886, n.10. In this case, the Conservancy has failed to demonstrate that
Allegheny's corporate reorganization was effectuated for, or is being used for, an
improper purpose that would justify the use of veil piercing principles. See Laya, 177 W.
Va. at 347, 352 S.E.2d at 97.
In the final analysis, the
issue of whether the Commission has subject matter jurisdiction over the Blackwater River
Canyon land sale must be resolved by reference to the body of law which governs public
utilities. As discussed above, the Commission's jurisdiction is expressly limited to those
matters involving public utilities. W. Va. Code § 24-2-1. By definition, a public
utility involves the holding out or dedicating of a product or services to the public. See
id; Wilhite, 150 W. Va. at 760, 149 S.E.2d at 281. In this case, the land at issue has
never been used to supply any utility services to the West Virginia public. Neither has
that parcel of land ever been reported as an asset or been included in the rate base of a
West Virginia public utility. The statute upon which the Conservancy asserts entitlement
to post facto review of the land sale only applies to public utilities. See W. Va. Code
§ 24-2-12. Yet, Allegheny, as a public utility holding company, is proscribed by
federal law from operating as public utility. See 15 U.S.C. § 79i(a)(1). Upon the
facts of this case, there is only one conclusion that can be reached: Allegheny is not a
public utility subject to the jurisdiction of the Commission. Accordingly, we find that
the Commission was correct in its determination that it lacked jurisdiction to proceed on
the merits of the Conservancy's complaint.See
footnote 17 17
We are sympathetic to the
environmental concerns that obviously motivated the Conservancy to initiate the cause of
action below and we fully recognize that the sale of the Blackwater River Canyon property
may have significant environmental implications for West Virginia. Unfortunately, the
Commission is simply not the appropriate forum to challenge a land sale on the basis of
the negative environmental consequences that such sale may spawn.See footnote 18 18 Moreover, we must observe that even
if the Conservancy had obtained the relief they were seeking before this Court--a finding
of jurisdiction before the Commission-- they still would not be in a position to have
their environmental concerns addressed. This is because the Commission's function under
West Virginia Code § 24-2-12 does not entail withholding consent for real estate
sales based on a negative environmental impact. The limited nature of the Commission's
duty under that statutory provision is simply to examine the proposed sale in terms of how
it will impact on the provision of utility services to the consumers of this state. Quite
simply, the Commission cannot, based on its limited review functions, address the
environmental concerns that are the crux of the Conservancy's decision to litigate this
The preservation of the
Blackwater Canyon is an emotional issue and well it should be. There is an inherent
tension between private property rights and public environmental concerns, and growing
interest in the development of public policy that will preserve the integrity of our
environment for future generations. Although historically the right to hold private
property has been sacrosanct in our democracy, American property law at the close of the
twentieth century must mediate to some extent between protecting the individual freedoms
of property owners and the interests of the community at large. See Terry W. Frazier,
Protecting Ecological Integrity Within the Balancing Function of Property Law, 28
Environmental Law 53, 109 (1998). "The use of private property is increasingly
subject to government regulation in the public interest to protect the environment and
guard against thoughtless development." Atlantic Int'l Inv. Corp. v. Turner, 381
So.2d 719, 722 (Fla. Dist. Ct. App. 1980). It has been recognized, however, that while we
have begun to acknowledge our dependence upon ecological integrity, the process of
including protection of ecological integrity in the balancing function of property law is
nowhere near complete. Our understanding and legal recognition of humankind's place in
land communities lags behind our understanding and recognition of the importance of
humans' relations to each other. Property laws do not reflect principles of biology,
ecology, and other natural sciences to anywhere near the extent that property laws reflect
principles of philosophy, sociology, economics, and other social sciences.
Frazier, supra, 28 Environmental Law at
If the natural integrity
of the Blackwater River Canyon is destroyed, it will be a tragedy for the people of West
Virginia. It is unfortunate that state government has not taken a more active role in the
stewardship of our environment by developing both law and public policy that takes
environmental concerns into account; that environmental organizations were not more
aggressive in seeking to purchase and preserve this land at an earlier point in time; and
that West Virginia Power did not show more corporate responsibility to this state by
selling the land to environmentalists for purposes of preservation notwithstanding the
realization of reduced profits.
The harsh reality is that the protection of the environment, and not utility regulation, is what is truly at stake here; the Public Service Commission, however, is not the forum to address environmental concerns. Consequently, a holding by this Court finding jurisdiction before the Commission would not only convolute the law, but in the final analysis would clearly afford no real relief to the Conservancy and no protection to the Blackwater River Canyon.
Based on the foregoing,
the decision of the Public Service Commission is hereby affirmed.
Footnote: 11 We point out that a per curiam opinion is not legal precedent. See Lieving v. Hadley, 188 W. Va. 197, 201 n.4, 423 S.E.2d 600, 604 n.4 (1992).
Footnote: 22 In addition to the Conservancy, the Sierra Club and the West Virginia Wildlife Federation are named plaintiffs in this case. Chuck Merritt and James M. Sconyers are named as individual plaintiffs.
Footnote: 33 Allegheny Power System has since changed its name to Allegheny Energy.
Footnote: 44 The Conservancy was unsuccessful in its attempt to buy the piece of property at issue. It was outbid on the property by Canyon Lands, who purchased the property for $4,850,000. The property has since been reconveyed by Canyon Lands to Allegheny Wood Products. According to representations made during oral argument, the current owner of the subject piece of property is already timbering the land. Although the Conservancy did not apply for a stay in this case, this Court's jurisdiction to rule on such relief would be limited as Allegheny Wood Products is not a party to these proceedings.
Footnote: 55 West Virginia Power and Transmission Company is a wholly-owned subsidiary of West Penn Power Company, a Pennsylvania public utility. West Penn Power Company is a subsidiary of Allegheny.
Footnote: 66 Since the land at issue has already been sold, the Conservancy seeks to have the land sale declared null and void for failure to comply with West Virginia Code § 24-2-12.
Footnote: 77 As a public utility holding company, the only assets Allegheny has are the stocks of utility companies.
Footnote: 88 Pursuant to 15 U.S.C. § 79i(a)(1) (1994), a public utility holding company is prohibited by federal law from providing utility services unless it first receives permission to do so from the Securities and Exchange Commission ("SEC"). Allegheny states that it has not applied to the SEC for such permission.
Footnote: 99 Mr. Noia is also the CEO of Monongahela Power Company, Potomac Edison Company, West Penn Power, all three of which are utility subsidiaries of Allegheny.
Footnote: 1010 Most appeals arising from the Commission involve the following standard of review: (1) whether the Commission exceeded its statutory jurisdiction and powers; (2) whether there is adequate evidence to support the Commission's findings; and (3) whether the substantive result of the Commission's order is proper. See Central West Virginia Refuse, 190 W. Va. at 416-17, 438 S.E.2d at 596-97, syl. pt. 1.
Footnote: 1111 Obviously, any personal property that meets the description of the proviso language contained in West Virginia Code § 24-2-12 is exempted from the consent and approval requirements of that provision.
Footnote: 1212 Allegheny is the parent corporation of three operating utility subsidiaries: Monongahela Power, Potomac Edison, and West Penn. Monongahela Power is an Ohio Corporation that provides electric services to citizens of both West Virginia and Ohio. Potomac Edison is a Maryland and Virginia corporation that provides utility services to customers located in Maryland, West Virginia, and Virginia. West Penn is a Pennsylvania corporation whose service area lies entirely within Pennsylvania.
Two additional corporations are subsidiaries of Allegheny. They are Allegheny Power Service Corporation and AYP Capital, Inc. Neither of these subsidiaries are in the business of providing utility services. According to Allegheny, Allegheny Power Service Corporation acts as a mutual service company for Allegheny's subsidiaries, in accordance with 12 U.S.C. § 79m (1994) and SEC regulations. AYP Capital is a non-regulated subsidiary that engages in various unregulated businesses as permitted by the SEC.
Footnote: 1313 As additional support for its position that Allegheny is a public utility, the
Conservancy cites this Court's observation in Boggs v. Public Service Commission, 154 W. Va. 146, 174 S.E.2d 331 (1970), that "'the distinguishing characteristic of a public utility is the devotion of private property by the owner or person in control thereof to such a use that the public generally, or that part of the public which has been served and has accepted the service, has the right to demand that the use or service, as long as it is continued, shall be conducted with reasonable efficiency and under proper charges.'" Id. at 151-52, 174 S.E.2d at 335 (quoting 73 C.J.S. Public Utilities § 1 and emphasis supplied).
Footnote: 1414 In Laya, we identified the following factors as useful in analyzing the issue of corporate veil piercing:
(1) commingling of funds
and other assets of the corporation with those of the individual shareholders;
(2) diversion of the corporation's funds or assets to noncorporate uses (to the personal uses of the corporation's shareholders);
(3) failure to maintain the corporate formalities necessary for the issuance of or subscription to the corporation's stock, such as formal approval of the stock issue by the board of directors;
(4) an individual shareholder representing to persons outside the corporation that he or she is personally liable for the debts or other obligations of the corporation;
(5) failure to maintain corporate minutes or adequate corporate records;
(6) identical equitable ownership in two entities;
(7) identity of the directors and officers of two entities who are responsible for supervision and management (a partnership or sole proprietorship and a corporation owned and managed by the same parties);
(8) failure to
adequately capitalize a corporation for the reasonable risks of the corporate undertaking;
(9) absence of separately held corporate assets;
(10) use of a corporation as a mere shell or conduit to operate a single venture or some particular aspect of the business of an individual or another corporation;
(11) sole ownership of all the stock by one individual or members of a single family;
(12) use of the same office or business location by the corporation and its individual shareholder(s);
(13) employment of the same employees or attorney by the corporation and its shareholder(s);
(14) concealment or misrepresentation of the identity of the ownership, management or financial interests in the corporation, and concealment of personal business activities of the shareholders (sole shareholders do not reveal the association with a corporation, which makes loans to them without adequate security);
(15) disregard of legal formalities and failure to maintain proper arm's length relationships among related entities;
(16) use of a corporate entity as a conduit to procure labor, services or merchandise for another person or entity;
(17) diversion of corporate assets from the corporation by or to a stockholder or other person or entity to the detriment of
creditors, or the manipulation of assets and liabilities between entities to concentrate the assets in one and the liabilities in another;
(18) contracting by the corporation with another person with the intent to avoid the risk of nonperformance by use of the corporate entity; or the use of a corporation as a subterfuge for illegal transactions;
(19) the formation and use of the corporation to assume the existing liabilities of another person or entity.
177 W. Va. at 347-48, 352 S.E.2d at 98-99.
Footnote: 1515 Since one of the many claims asserted in Bell Atlantic involved inside wire maintenance services, which comes within the province of the Commission, we determined that the circuit court and the Commission had concurrent jurisdiction in that case. Notwithstanding the doctrine of primary jurisdiction, which, if applied, would require the circuit court to "refrain from exercising jurisdiction until after the agency has resolved the issue" under its jurisdiction, we determined that the circuit court had properly retained jurisdiction of the case as the legal issues under consideration (violations of antitrust and consumer protection laws as well as common law theories) were "well within the conventional experience of the circuit court." 201 W. Va. at __, 497 S.E.2d at 764, 766.
Footnote: 1616 See supra note 14.
Footnote: 1717 Based on our decision that the Commission is without jurisdiction, we do not address the Conservancy's assignment that the Commission committed error in refusing to grant its request to conduct discovery.
Footnote: 1818 The Conservancy recently filed an action in federal court under the Endangered Species Act of 1973, 16 U.S.C. § 1531 to 1544 (1994), wherein they alleged that four species of animals indigenous to this state (northern flying squirrel, Cheat Mountain salamander, Indiana bat, and Virginia big-eared bat) are being harmed as a result of the timbering operations that are currently in progress on the subject land.