Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

IRVING ELKIN v. BELL TELEPHONE COMPANY PENNSYLVANIA (07/11/80)

decided: July 11, 1980.

IRVING ELKIN, ASSIGNEE OF STUDIO PHOTOGRAPHERS, INC. OF PENNSYLVANIA, APPELLANT,
v.
THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, APPELLEE



No. 81, January Term, 1978, Appeal from the Judgment of the Superior Court of Pennsylvania at No. 1435, October Term, 1976, Reversing the Order of the Court of Common Pleas of Montgomery County at No. 70-04699.

COUNSEL

Michael Brodie, Vincent J. Fumo, Philadelphia County, for appellant.

Jerome J. Shestack, Philadelphia County, for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Eagen, C. J., and Roberts, J., filed concurring opinions. Nix, J., filed a dissenting opinion.

Author: Larsen

[ 491 Pa. Page 127]

OPINION

This litigation began on December 7, 1971. Studio Photographers, Inc. (Studio), assignor to Irving Elkin, the appellant, filed a four-count complaint in trespass in the Court of Common Pleas of Montgomery County against the Bell Telephone Company of Pennsylvania (Bell), appellee. The first count alleged Bell negligently failed to furnish Studio "reasonable, rapid and efficient service" with respect to three wide-area telephone service ("WATS") lines. Count two was based on Bell's alleged deliberate refusal to furnish Studio with adequate directory assistance information service.*fn1 The third and fourth counts alleged negligent failure of Bell's directory assistance service to furnish written telephone listings (i. e., telephone numbers) for prospective customers of Studio where Studio had submitted telephone listing requests for over 2,500 such customers. Damages, both compensatory and punitive, were demanded.

Bell filed preliminary objections to the jurisdiction of the court asserting that the matter was within the exclusive jurisdiction of the Pennsylvania Public Utility Commission (PUC). A court en banc entered an order which "stayed" the matter until "there is a determination of standards for the services involved by the [PUC] . . . ."*fn2

[ 491 Pa. Page 128]

A proceeding was commenced by the PUC, upon the complaint of Studio raising the same allegations contained in the complaint before the court. Following an evidentiary hearing and consideration of the briefs and arguments of the parties, the PUC rendered an adjudication and order dismissing the complaint, stating "[a]fter full consideration of all the facts of record the Commission is of the opinion and finds that [Studio] has failed to substantiate its allegations and that [Bell] has, in fact, provided [Studio] with a reasonably continuous and adequate telephone service . . . ."

No exceptions were filed to this PUC determination, nor was an appeal taken. Studio then had the aforementioned civil action listed for trial. Bell filed a motion for summary judgment, asserting inter alia that the complaint raised questions within the exclusive jurisdiction of the PUC and that the unappealed determination of these questions by the PUC was conclusive and could not be collaterally attacked in the Court of Common Pleas. This motion was denied.

Bell appealed the denial to the Superior Court which reversed the lower court and ordered judgment entered for Bell. Elkin v. Bell Telephone Co., 247 Pa. Super. 505, 372 A.2d 1203 (1977) (opinion by Judge Jacobs; concurring opinion by Judge Spaeth).

This Court granted Studio's petition for allowance of appeal to determine the effect of the PUC adjudication of the standards of services involved upon the trespass action before the Court of Common Pleas, especially in light of our then-recent decision in Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977).

This case requires accommodation of the respective spheres of adjudicatory authority of the PUC and the Courts of Common Pleas where each has jurisdiction over some facet of the controversy. The PUC has long been recognized as the appropriate forum for the adjudication of issues involving the reasonableness, adequacy and sufficiency of

[ 491 Pa. Page 129]

    public utility services. Behrend v. Bell of Pennsylvania, 431 Pa. 63, 66, 243 A.2d 346, 347 (1968); Duquesne Light Co. v. Monroeville Borough, 449 Pa. 573, 581, 298 A.2d 252, 257 (1972); Lansdale Borough v. Philadelphia Electric Co., 403 Pa. 647, 650-51, 170 A.2d 565, 566-67 (1961). The Public Utility Law has expressly granted the PUC the power to "prescribe as to service*fn3 and facilities . . . just and reasonable standards . . . to be furnished, imposed, observed, and followed by any or all public utilities . . . ." and upon finding, after reasonable notice and hearing, "that the service or facilities of any public utility are unreasonable, unsafe, inadequate, insufficient, or unreasonably discriminatory . . . ." the PUC "shall determine and prescribe, by regulation or order, the reasonable, safe, adequate, sufficient, service or facilities to be observed, furnished, enforced or employed . . . ." Sections 412 and 413, respectively, of the Public Utility Law, as amended 66 P.S. §§ 1182, 1183 (1959) (replaced by 66 Pa.C.S. §§ 1504, 1505 (1978)).*fn4

In spite of the PUC's rather extensive statutory responsibility for ensuring the adequacy, efficiency, safety and reasonableness of public utility services, we recognized in Feingold v. Bell of Pennsylvania, supra, that the Courts of

[ 491 Pa. Page 130]

Common Pleas have original jurisdiction to entertain suits for damages against public utilities based upon asserted failure to provide adequate services, even though the subject matter of the complaint is encompassed by the Public Utility Law. 477 Pa. at 7-11, 383 A.2d at 795-96. Traditional judicial remedies such as damages had been preserved by the Public Utility Law, Id., 477 Pa. at 8-9, 383 A.2d at 795, 66 P.S. §§ 1357, 1500 (1959) (replaced by 66 Pa.C.S. § 103), and, since the legislature had withheld from the PUC the power to award damages, Feingold v. Bell of Pennsylvania, supra, 477 Pa. at 8, 383 A.2d at 794, this Court concluded that the courts must have jurisdiction over all damage actions.

The lower court apparently recognized the split jurisdiction and the advantages of referring the matter of the standards of services to the PUC, and so stayed the civil suit for damages pending a "determination [by the PUC] of standards for the services involved." We must now decide whether this bifurcated procedure was proper and, if it was, we will determine the effect of the PUC adjudication upon the litigation in the Court of Common Pleas.

Initially, we address appellant's argument, the entire thrust of which is that Feingold has ousted the PUC for all purposes in any case involving an action for damages.*fn5 Appellant's interpretation of Feingold is too broad and would "virtually strip" the PUC of all jurisdiction merely by framing the allegations in contractual and/or trespassory terminology, and demanding damages. As noted by Mr. Justice Pomeroy's insightful dissenting opinion in Feingold which ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.