99 B.R. 506 (Bkrtcy.D.N.H. 1989), 89-08, In re Public Service Co. of New Hampshire

Docket NºAdv. No. 89-08.
Citation99 B.R. 506
Party NameIn re PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Debtor. PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Plaintiff, v. STATE OF NEW HAMPSHIRE and State of New Hampshire Public Utilities Commission, Defendants. Bankruptcy No. 88-00043.
Case DateApril 05, 1989
CourtUnited States Bankruptcy Courts, First Circuit

Page 506

99 B.R. 506 (Bkrtcy.D.N.H. 1989)

In re PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Debtor.

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, Plaintiff,

v.

STATE OF NEW HAMPSHIRE and State of New Hampshire Public Utilities Commission, Defendants.

Bankruptcy No. 88-00043.

Adv. No. 89-08.

United States Bankruptcy Court, D. New Hampshire.

April 5, 1989

Isaac M. Pachulski, Don Willenburg, Kevin J. Burke, for Public Service co.

Geoffrey B. Kalmus, J. Michael Deasy, for the Unsecured Creditors Committee.

Richard Tilton, for the Equity Committee.

Larry M. Smukler, Sr. Asst. Atty. Gen., Daniel J. Callaghan, for the State of N.H.

William B. Gundling, Asst. Atty. Gen., for the State of Conn.

Susan Keely, for the U.S. trustee.

George J. Wade, Barbara J. Gould, David J. Dunfey, for Citicorp and Consol. Utilities & Communications, Inc. (CUC).

Peter V. Doyle, for First Fidelity Bank and Amoskeag Bank.

Jeffrey G. Grody, for Northeast Utilities Service Co.

Ted A. Berkowitz, for First Fidelity Bank.

Robert Drain, for Shearson, Lehman, Hutton, Inc.

Peter Nils Baylor, for Bank of New England and Maryland Nat. Bank.

David W. Marshall, for NEES.

John M. Mutkoski, for Small Power Producers and Alexandria Power Bio Energy.

Sallie H. Helm, for Spear, Leeds & Kellogg.

Noel E. Hanf, for the United Illuminating Co.

PRETRIAL ORDER RE DECLARATORY RELIEF ON § 1123(a)(5) PREEMPTION ISSUE

JAMES E. YACOS, Bankruptcy Judge.

This adversary proceeding was commenced by the filing of a Complaint for Declaratory Judgment by the chapter 11 debtor on February 7, 1989. The Declaratory relief requested concerns the jurisdiction of the New Hampshire Public Utilities Commission ("NHPUC") over certain transactions

Page 507

provided for in the debtor's chapter 11 plan of reorganization filed with this court on December 27, 1988. The debtor notes that its plan provides for various transactions in its implementation that ordinarily would be subject to NHPUC regulatory control and approval, citing inter alia, New Hampshire Revised Statutes, RSA 374:30, 374:31 (transfer of franchise, works, system); RSA 369:2 (mortgaging of property); RSA 369:1, 369:7 (issuance of stock, bonds, notes and other evidences of indebtedness); and RSA 366:5 (contracts with affiliates).

The plan filed by the debtor expressly states that PSNH need not seek, and does not intend to seek, approval from NHPUC as to the foregoing transactions normally within the approval authority of that regulatory agency, based upon the confirmation standards and powers included in § 1129 of the Bankruptcy Code, together with the authorization for providing for adequate means for implementation of a reorganization plan included within § 1123(a)(5) of the Bankruptcy Code. The complaint concludes by requesting judgment by this court "declaring the rights and obligations of Public Service and the Defendants regarding the regulatory approvals of the NHPUC, if any, required for confirmation under § 1129 of the Bankruptcy Code and implementation of the Plan or of any other plan to be filed in this chapter 11 case."

The State of New Hampshire (hereinafter "State") and the NHPUC filed their answer to the declaratory judgment complaint on February 21, 1989, in which they request that the court issue judgment "declaring that § 1123 of the Bankruptcy Code does not permit a regulated electric utility debtor to disregard State and Federal regulatory law in the formation and implementation of its plan of reorganization." 1

The debtor in a Motion for Summary Judgment [Court Paper No. 1634] has asserted that there is no genuine dispute as to any material fact and has requested summary adjudication as prayed for, as a matter of law, and states further: "Section 1123(a)(5) of the Bankruptcy Code, coupled with the grant of plenary jurisdiction of the property of the debtor and the property of...

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