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No. 21-1001 – City of Wheeling v. Public Service Commission of West Virginia and The 

City of Benwood. 

Armstead, Justice, joined by Justice Hutchison, dissenting: 

 The City of Benwood filed a complaint with the Public Service Commission 

(“PSC”) challenging the City of Wheeling’s proposed sewer service rate increase. West 

Virginia Code § 24-2-1(b)(6) authorizes the PSC to toll the 120-day period for resolution 

of such disputes “until the necessary information showing the basis of rates, fees, and 

charges or other information as the commission considers necessary is filed.” Id. It is 

undisputed that (1) Wheeling controlled when the PSC received the necessary information 

that it needed to resolve this matter; and (2) the PSC entered its order within 120 days of 

receiving the necessary information from Wheeling. Based on these undisputed facts, I 

believe that the PSC complied with the 120-day resolution deadline contained in West 

Virginia § 24-2-1(b)(6). Therefore, I would have affirmed the PSC’s order. 

 This case presents a straightforward issue of statutory interpretation requiring 

the Court to examine when the 120-day deadline contained in West Virginia Code § 24-2-

1(b)(6) begins to run. This Court has held that in deciding the meaning of a statutory 

provision, “[w]e look first to the statute’s language. If the text, given its plain meaning, 

answers the interpretive question, the language must prevail and further inquiry is 

foreclosed.” Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 587, 

466 S.E.2d 424, 438 (1995). Further, this Court has held that “[a] statute is open to 

construction only where the language used requires interpretation because of ambiguity 

which renders it susceptible of two or more constructions or of such doubtful or obscure 

FILED

April 24, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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meaning that reasonable minds might be uncertain or disagree as to its meaning.” Sizemore 

v. State Farm Gen. Ins. Co., 202 W. Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal 

quotations and citation omitted). 

Turning to the statute at issue, West Virginia Code § 24-2-1(b)(6) provides:

(b) The jurisdiction of the commission over political 

subdivisions of this state providing separate or combined water 

and/or sewer services and having at least 4,500 customers and 

annual combined gross revenues of $3 million or more that are 

political subdivisions of the state is limited to: . . . . 

(6) Investigation and resolution of disputes between a political 

subdivision of the state providing wholesale water and/or 

wastewater treatment or other services, whether by contract or 

through a tariff, and its customer or customers, including, but 

not limited to, rates, fees, and charges, service areas and 

contested utility combinations: Provided, That any request for 

an investigation related to a dispute that is based on the act or 

omission of the political subdivision shall be filed within 30 

days of the act or omission of the political subdivision and the 

commission shall resolve the dispute within 120 days of filing. 

The 120-day period for resolution of the dispute may be tolled 

by the commission until the necessary information showing the 

basis of the rates, fees, and charges or other information 

required by the commission is filed: Provided, however, That 

the disputed rates, fees, and charges fixed by the political 

subdivision providing separate or combined water and/or 

sewer services shall remain in full force and effect until set 

aside, altered or, amended by the commission in an order to be 

followed in the future.

(Emphasis added).

Wheeling contends, and the majority opinion concluded, that this statute is 

unambiguous and provides that the 120-day dispute resolution period begins on the date a 

request for investigation is filed with the PSC. Wheeling focuses on the following statutory
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language in support of its argument: “[T]he commission shall resolve the dispute within 

120 days of filing.” Id. Further, Wheeling argues that while the PSC has the authority to 

pause the 120-day period once it has begun, the PSC does not have the authority to 

postpone the commencement of the 120-day period. 

By contrast, the PSC asserts that the 120-day period did not begin to run until 

it received all of the necessary information from Wheeling. The PSC relies on the 

following statutory language in support of its interpretation: “The 120-day period for 

resolution of the dispute may be tolled by the commission until the necessary information 

showing the basis of the rates, fees, and charges or other information required by the 

commission is filed[.]” Id. (Emphasis added). According to the PSC, its interpretation of 

the statute “ensures that [it] will have sufficient time to consider all of the necessary 

information provided to it.” Further, the PSC asserts that its interpretation of the statute 

“meets the Legislature’s goal for the PSC [which requires it] to timely evaluate disputes 

and to safeguard the interests of the public and the utilities provided to it.” 

As demonstrated by the parties’ conflicting interpretations of West Virginia 

Code § 24-2-1(b)(6), this statute is reasonably susceptible to differing constructions and 

“reasonable minds might be uncertain or disagree as to its intended meaning.” Sizemore, 

202 W.Va. at 596, 505 S.E.2d at 659. Because West Virginia Code § 24-2-1(b)(6) is 

reasonably susceptible to differing constructions, I find that it is ambiguous.

When faced with an ambiguous statute, this Court has observed that “[a] 

statute that is ambiguous must be construed before it can be applied.” Syl. Pt. 1, Farley v. 
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Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). “The primary object in construing a 

statute is to ascertain and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. 

State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). Also, “[w]hen 

a statute’s language is ambiguous, a court often must venture into extratextual territory in 

order to distill an appropriate construction. Absent explicatory legislative history for an 

ambiguous statute . . . this Court is obligated to consider the . . . overarching design of the 

statute.” State ex rel. McGraw v. Scott Runyan Pontiac–Buick, Inc., 194 W. Va. 770, 777, 

461 S.E.2d 516, 523 (1995). 

The disputed language in West Virginia Code § 24-2-1(b)(6) implicates two 

concerns: (1) that the PSC resolve such disputes expeditiously, and (2) that it have all of 

the necessary information it needs prior to doing so. I find that the PSC’s interpretation of 

the statute, that the 120-day clock does not begin to run until it receives all of the necessary 

information, is consistent with these two concerns. Indeed, the statute expressly states that 

the “120-day period,” not simply a portion of such time period, may be tolled. Such 

language indicates that the PSC’s review period should only begin when the information 

needed for a complete review is received. The PSC’s interpretation ensures that it will 

have the benefit of the full 120-day period to conduct a thorough review of such disputes 

with all of the necessary information. Conversely, under Wheeling’s construction of the 

statute, a party could hold back necessary information while the 120-day clock is running, 

thus depriving the PSC of the full review period provided for in the statute. Allowing a 

party to engage in this theoretical type of gamesmanship has the potential to prolong these 
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disputes and to deprive the PSC of sufficient time to conduct its review. This Court has 

provided that “[t]he judicial system of this State is not designed to promote ‘footloose’

tactics by litigants that lead to ‘gotcha’ justice. Our system is designed to dispense justice 

based upon truth-seeking fair and impartial proceedings.” W. Va. Dept. of Transp., Div. of 

Highways v. Robertson, 217 W. Va. 497, 507, 618 S.E.2d 506, 516 (2005).

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Additionally, because West Virginia Code § 24-2-1(b)(6) is ambiguous, 

substantial deference should be given to the PSC’s interpretation of the statute. This is 

because “the rulings, interpretations and opinions” of the PSC “constitute a body of 

experience and informed judgment to which courts and litigants may properly resort for 

guidance.” Appalachian Power Co., 195 W. Va. at 583, 466 S.E.2d at 434 (1995) (citations 

omitted). Therefore, “this Court gives substantial deference to the PSC’s construction of a 

statute.” Sierra Club v. Pub. Serv. Comm’n of W. Va., 241 W. Va. 600, 613, 827 S.E.2d 

224, 237 (2019). See also Security Nat'l Bank & Trust Co. v. First W. Va. Bancorp, Inc.,

Syl. Pt. 4, 166 W. Va. 775, 277 S.E.2d 613 (1981) (“Interpretations of statutes by bodies 

charged with their administration are given great weight unless clearly erroneous.”). 

Based on the foregoing, I respectfully dissent from the majority opinion’s 

holding that the 120-day dispute resolution period in West Virginia Code § 24-2-1(b)(6) 

begins on the date a request for investigation is filed with the PSC. Instead, I would have 

1 The majority opinion aptly notes that Wheeling did not object to the dispute 

resolution deadline set by the PSC on October 26, 2021. Instead, Wheeling waited to raise 

its argument that the 120-day deadline had passed until after the PSC entered its November 

12, 2021. Wheeling has not offered any compelling reason explaining why it did not 

immediately object to the PSC’s October 26, 2021, order.
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affirmed the PSC’s order and determined that the 120-day deadline does not begin to run 

until the PSC has received all of the necessary information it needs to resolve a dispute.