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ALLEN L. FEINGOLD v. BELL PENNSYLVANIA (12/01/77)

decided: December 1, 1977.

ALLEN L. FEINGOLD, INDIVIDUALLY, AND A. L. FEINGOLD ASSOCIATES, APPELLANTS,
v.
BELL OF PENNSYLVANIA, APPELLEE



COUNSEL

Allen L. Feingold, Philadelphia, for appellants.

Raymond F. Scully, William M. Hebrank, Jerome J. Shestack, Philadelphia, for appellee.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, former C. J., did not participate in the consideration or decision of this case. Roberts and Pomeroy, JJ., filed dissenting opinions.

Author: Nix

[ 477 Pa. Page 3]

OPINION

Appellants, Allen L. Feingold, individually and A. L. Feingold Associates, commenced an action in Equity in

[ 477 Pa. Page 4]

    the Common Pleas Court of Philadelphia County against the Bell Telephone Company of Pennsylvania, seeking, inter alia, injunctive relief and compensatory and punitive damages. Bell Telephone responded by filing preliminary objections to the complaint. After argument, the court dismissed the complaint with prejudice finding that the appellants had failed to exhaust their administrative remedies. Hence this appeal.*fn1

In considering whether the lower court properly sustained appellee's preliminary objections, this Court must assume the truth of the factual averments in appellant's complaint, as summarized below. Allstate v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973); Eden Roc Country Club v. Mullhauser, 416 Pa. 61, 204 A.2d 465 (1964).

On June 1, 1970, appellant moved his office from 1313 One East Penn Square to 506 East Penn Square in Philadelphia. He was given a new telephone number at that time. Since the Philadelphia directories listed his office under the old number, appellee provided a tape recorded referral giving the new number to anyone calling the original listing. The referral operated properly for about two months, at which time, appellant alleged it was disconnected by appellee, so that callers heard a ring, indicating that the telephone was functional but simply was not being answered. Appellant

[ 477 Pa. Page 5]

    alleged that as a result clients and colleagues were unable to reach him by telephone. The problem was allegedly aggravated when new directories were issued by appellee still containing appellant's original number while the referral recording still remained inoperative. Appellant further alleged that repeated requests and demands to appellee to correct the referral or to assign the old number to another subscriber went unheeded. Appellant alleged that as a result of this problem his business declined.

Appellant also complained that appellee disconnected his telephone service on or about March 20 and March 21, 1974, because appellant attached a privately maintained answering device to his new telephone. Telephone service was reconnected, but it is alleged that appellee still threatens discontinuance of service if the answering device is used.

Finally, appellant complains of appellee's refusal to provide him with mobile telephone service. Appellant applied to appellee for a mobile unit in 1969 and was told at that time of the existence of a waiting list of approximately two years for such service. Appellant checked on the status of the application in 1972 and was informed by appellee that the application was cancelled or destroyed because appellee was unable to contact appellant to verify the application. Appellant alleged that appellee was unable to contact them due to the difficulties with the tape-recorded referral system described above.

The question presented by this case is whether appellant, seeking both legal and equitable relief against a public utility, should have first exhausted his administrative remedies under the Public Utility Law, Act of May 28, 1937, P.L. 1053, 66 P.S. § 1101 et seq. (1959 & Supp.1977-78), before seeking a judicial remedy.*fn2

[ 477 Pa. Page 6]

The lower court answered this question in the affirmative. For the reasons that follow, we disagree.

This Court has long recognized and applied the general rule requiring a petitioner to exhaust all available administrative remedies before seeking judicial redress for an alleged wrongdoing by a public utility. See, e. g., Commonwealth v. Glen Alden Corp., 418 Pa. 57, 210 A.2d 256 (1965); Collegeville Borough v. Philadelphia Suburban Water Co., 377 Pa. 636, 105 A.2d 722 (1954). The rationale behind this rule is clear. When the Legislature has seen fit to enact a pervasive regulatory scheme and to establish a governmental agency possessing expertise and broad regulatory and remedial powers to administer that statutory scheme, a court should be reluctant to interfere in those matters and disputes which were intended by the Legislature to be considered, at least initially, by the administrative agency. Full utilization of the expertise derived from the development of various administrative bodies would be frustrated by indiscriminate judicial intrusions into matters within the various agencies' respective domains.*fn3 See Colteryahn Sanitary Dairy v. Milk Control Commission, 332 Pa. 15, 1 A.2d 775 (1938), construing, Act of March 21, 1806, P.L. 558, 46 P.S. § 156, consolidated by, Act of Nov. 2, 1970, P.L. 707, No. 230, 1 Pa.C.S. § 1504 (Supp.1977-78); Commonwealth v. Glen Alden Corp., supra.

As with all legal rules, the exhaustion of administrative remedies rule is neither inflexible nor absolute, and

[ 477 Pa. Page 7]

    this Court has established exceptions to the rule. Thus, a court may exercise jurisdiction where the administrative remedy is inadequate. Borough of Green Tree v. Board of Property Assessments, 459 Pa. 268, 328 A.2d 819 (1974); Philadelphia Life Ins. Co. v. Commonwealth, 410 Pa. 571, 190 A.2d 111 (1963). The mere existence of a remedy does not dispose of the question of its adequacy; the administrative remedy must be "adequate and complete." Philadelphia Life Ins. Co. v. Commonwealth, supra 410 Pa. at 580, 190 A.2d at 116. In the case now before us, we must determine the narrower issue of whether appellant had adequate administrative remedies available under the Public Utility Law.

The Public Utility Law placed a broad range of subject matters under the control of the Public Utility Commission (PUC), making that agency responsible for ensuring the adequacy, efficiency, safety, and reasonableness of public utility services. Act of May 28, 1937, P.L. 1053, art. IV, as amended, Act of October 7, 1976, P.L. 1057, No. 215, 66 P.S. § 1171 (Supp.1977-78). It can be conceded that the subject matter of appellant's complaint is encompassed by Section 401 of the Public Utility Law. The enforcement and remedial powers of the PUC, although formidable, are not those of a court. The PUC is empowered to correct, by regulation or order, abuses in the provision of service. Act of May 28, 1937, P.L. 1053, § 413, 66 P.S. § 1183 (1959). The PUC has the power to impose fines upon a public utility for violation of the Public Utility Law. Act of May 28, 1937, P.L. 1053, art. XIII, § 1301, as amended, Act of October 7, 1976, P.L. 1057, No. 215, § 25, 66 P.S. § 1491 (Supp.1977-78). If the PUC determines that the Public Utility Law, a regulation or order has been or is about to be violated, the PUC may petition the Court of Common Pleas of Dauphin County for appropriate judicial enforcement. Act of May 28, 1937, P.L. 1053, art. IX, § 903, as amended, Act of June 3, 1971, P.L. 137, No. 6, § 1, 66 P.S. § 1343 (Supp.1977-78). Alternatively, the PUC may request that the Attorney General initiate legal proceedings to obtain judicial enforcement

[ 477 Pa. Page 8]

    of the Public Utility Law or a PUC order or regulation. Act of May 28, 1937, P.L. 1053, art. IX, § 904, 66 P.S. § 1344 (1959). Since the PUC is a creature of statute, it has only those powers which are expressly conferred upon it by the Legislature and those powers which arise by necessary implication. Allegheny County Port Authority v. Pa. P. U. C., 427 Pa. 562, ...


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