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CHARLES S. MORROW v. BELL TELEPHONE COMPANY PENNSYLVANIA. CHARLES S. MORROW (06/22/84)

filed: June 22, 1984.

CHARLES S. MORROW, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, APPELLANT,
v.
THE BELL TELEPHONE COMPANY OF PENNSYLVANIA. CHARLES S. MORROW, APPELLANT, V. THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, A CORPORATION



No. 292 Pittsburgh, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 82-00283. No. 307 Pittsburgh, 1982, Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 82-00284.

COUNSEL

Mark B. Aronson, Pittsburgh, for appellant.

J. Tomlinson Fort, Pittsburgh, for appellee.

Rowley, Wieand and Hester, JJ.

Author: Wieand

[ 330 Pa. Super. Page 279]

Charles S. Morrow filed two civil actions against The Bell Telephone Company of Pennsylvania (hereinafter "Bell"). The complaint in one action was in equity and sought class action certification; the complaint in the other action claimed individual damages for tortious and/or contractual wrongs allegedly committed upon Morrow by Bell. Bell filed preliminary objections to both complaints. In the equity action, the court concluded that subject matter jurisdiction was vested exclusively in the Pennsylvania Public Utility Commission. Therefore, it dismissed the action. A similar conclusion was reached in the other action with respect to some but not all causes of action alleged. Morrow appealed, and both appeals were consolidated for argument in this Court. We affirm the order entered in the first action but reverse the second.

Appellant's action in equity sought to challenge Bell practices relating to tolls charged for calls made to Bell's offices during non-business hours*fn1 and to security deposits required by Bell before it would resume telephone service previously suspended. The action requested damages and injunctive relief on behalf of appellant and all subscribers to telephone service assigned the "364" exchange within the "412" area code.*fn2

[ 330 Pa. Super. Page 280]

"It is well-settled law that initial jurisdiction over matters involving the reasonableness, adequacy or sufficiency of a public utility's service, facilities or rates is vested in the PUC and not in the courts." DeFrancesco v. Western Pennsylvania Water Co., 291 Pa. Super. 152, 156, 435 A.2d 614, 616 (1981), vacated and remanded on other grounds, 499 Pa. 374, 453 A.2d 595 (1982). See also: Bell Telephone Co. v. Uni-Lite, Inc., 294 Pa. Super. 89, 91, 439 A.2d 763, 765 (1982); Allport Water Authority v. Winburne Water Co., 258 Pa. Super. 555, 559, 393 A.2d 673, 675 (1978); Byer v. Peoples Natural Gas Co., 251 Pa. Super. 75, 80, 380 A.2d 383, 386 (1977); Bell Telephone Co. v. Sanner, 248 Pa. Super. 273, 276-277, 375 A.2d 93, 95 (1977). "Matters relating to the tariff, the necessity of equipment, deposits and the use of various types of services are peculiarly within the expertise of the Public Utility Commission and, as such, are outside the original jurisdiction of the courts." Bell Telephone Co. v. Uni-Lite, Inc., supra, 294 Pa. Super. at 92, 439 A.2d at 765. "When a utility's failure to maintain reasonable and adequate service is alleged, regardless of the form of the pleading in which the allegations are couched, it is for the PUC initially to determine whether the service provided by the utility has fallen short of the statutory standard required of it." DiSanto v. Dauphin Consolidated Water Supply Co., 291 Pa. Super. 440, 445, 436 A.2d 197, 199 (1981), quoting Bell Telephone Co. v. Sanner, supra 248 Pa. Super. at 277, 375 A.2d at 95. See generally: Public Utility Code, 66 Pa.C.S. ยง 101 et seq. It is equally clear that "[t]he courts retain jurisdiction of a

[ 330 Pa. Super. Page 281]

    suit for damages based on negligence or breach of contract wherein a utility's performance of its legally imposed and contractually adopted obligations are examined and applied to a given set of facts." Litman v. Peoples Natural Gas Co., 303 Pa. Super. 345, 351, 449 A.2d 720, 723 (1982), quoting Behrend v. Bell Telephone Co., 242 Pa. Super. 47, 59, 363 A.2d 1152, 1158 (1976), vacated and remanded on other grounds, 473 Pa. 320, 374 A.2d 536 (1977). "[O]nly where the available administrative remedies are adequate with respect to the alleged injury sustained and the relief requested" should exhaustion of administrative remedies be required before seeking damages in court. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 10, 383 A.2d 791, 795-796 (1977).

Appellant's equity action was a challenge to appellee's rates and to its service practices.*fn3 Rates and practices regarding deposits are ...


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