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Bush v. Public Service Commission of Maryland

Court of Special Appeals of Maryland

May 29, 2013

CHRIS BUSH
v.
PUBLIC SERVICE COMMISSION OF MARYLAND

Wright, Kehoe, Alpert, Paul E. (Retired, Specially Assigned), JJ. [1]

OPINION

Wright, J.

This appeal concerns the Circuit Court for Baltimore City's dismissal of a petition for judicial review ("Petition") filed by Chris Bush, appellant, challenging an October 31, 2011 order issued by the Public Service Commission of Maryland ("Commission"), appellee. At a hearing before the circuit court, Bush argued in part that his Petition was timely because the mailbox rule in Md. Rule 1-203(c) afforded him three days beyond the thirty-day period imposed by Md. Rule 7-203(a) to file his Petition. The court granted the Commission's motion to dismiss finding that Md. Rule 1-203(c) was not applicable and, therefore, concluded that the Petition was filed beyond the permissible period. This timely appeal followed.

Question Presented

Bush raises a single question on appeal which we quote verbatim:

Was the trial court's decision against the Appellant in error as regards application of the mailbox rule?

Finding no error in the circuit court's conclusion that Md. Rule 1-203(c) does not apply, we affirm the dismissal of Bush's Petition as untimely.

Facts and Procedural History

The facts of this case are undisputed. On August 27, 2011, Hurricane Irene made landfall in the mid-Atlantic region causing widespread disruption of electric service in Maryland and neighboring states. In the storm's wake, concerns regarding disaster preparedness and response prompted the Commission to launch a consolidated inquiry[1]into Maryland Investor-Owned Utility Companies, Southern Maryland Electric Cooperative, and Choptank Electric Cooperative (hereinafter collectively referred to as "Utility Companies").

Bush is a landlord in Catonsville, Maryland, whose tenants are customers of Baltimore Gas & Electric ("BGE"), a public utility subject to the Commission's inquiry. In Bush's view, "issues of BGE reliability will impact the ability of his renters to pay rent." During the public hearing phase of the consolidated inquiry, Bush appeared before the Commission to request that BGE be assessed a $50 million fine for "failure to provide reliable electric service" and for the utility's "dysfunctional restoration efforts" in the aftermath of Hurricane Irene.

On October 31, 2011, the Commission issued Order No. 84445 ("Order") which directed the Utility Companies to take specific actions designed to improve storm preparedness and response. Fines were not levied against the Utility Companies.

Bush conceded that he received and downloaded the Commission's Order on October 31, 2011, the date it was posted online. As a dissatisfied, interested party, Bush was permitted to file a Petition within thirty days of the Commission's Order pursuant to Md. Rule 7-203(a).

Proceeding pro se, Bush submitted his Petition by certified mail to the Clerk of the Circuit Court for Baltimore City on November 30, 2011. The Clerk's Office stamped as received and docketed the Petition on December 2, 2011, thirty-two days after the Commission issued the Order. On December 11, 2011, the Commission filed a motion to dismiss Bush's Petition as untimely. In response, Bush filed a "motion to dismiss the Commission's motion to dismiss" on December 19, 2011.

On February 1, 2012, at the motions hearing, Bush offered several reasons as to why his Petition was timely. Bush first averred that the mailbox rule under Md. Rule 1-203(c) provides three additional days beyond the thirty-day period during which a Petition may be properly filed. Next, he contended that the posting of the Commission's Order online constituted "service" within the meaning of Md. Rule 1-203(c) and, therefore, his Petition was timely filed, as the Clerk received the Petition within three days of the expiration of the thirty-day filing period. Lastly, Bush proposed that the Commission's failure to furnish him with notice of the Order violated his right to due process of law.

In granting the Commission's motion to dismiss, the circuit court found that the clock runs from the date of the administrative decision. Further, the court ruled that the Petition must be filed with the court, rather than mailed, prior to the expiration of the filing period, in order to be considered timely. Finally, the court concluded that there was no due process violation, given that Bush was aware of the Order, and therefore, was not "deprived of knowledge of the [Commission's Order]."

Discussion

This case turns on the construction of the word "filing" in Md. Rule 7-203. To reiterate, Bush argues that "filing" is equivalent to "mailing" under Md. Rule 7-203. He also reasserts the same contentions that he presented to the circuit court.

In response, the Commission avers that "filing" and "mailing" are legally distinguishable actions. Further, the Commission asserts that the mailbox rule provided in Md. Rule 1-203(c) is inapplicable to the instant case thereby precluding the addition of days in excess ...


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