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

SUPERIOR COURT OF PENNSYLVANIA


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. § 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 peculiarly and exclusively within the

[ 330 Pa. Super. Page 282]

    jurisdiction and expertise of the Public Utility Commission. Therefore, they must be addressed by that body. Although appellant's complaint contains averments of breach of contract, these averments are but a cover disguising the real thrust of his complaint, which is to challenge the adequacy and propriety of Bell's rates and service practices. See and compare: Byer v. Peoples Natural Gas Co., supra 251 Pa. Super. at 81, 380 A.2d at 386.

If Bell engaged in any illegal practices, the Public Utility Commission has the power and authority to order such practices terminated and discontinued. 66 Pa.C.S. § 501. The Public Utility Commission also has the authority to order Bell to make refunds of excessive charges, if any, which may have been levied against Bell's customers. 66 Pa.C.S. § 1312. Because the administrative remedies are adequate to remedy any wrong which appellant may have sustained, "the case is exclusively within the PUC's jurisdiction and no recourse to the courts, outside of the normal appellate process, is warranted." DiSanto v. Dauphin Consolidated Water Supply Co., supra 291 Pa. Super. at 451, 436 A.2d at 202.

We are sympathetic with the difficult task faced by the trial judge when he was required to analyze the chaotic state of appellant's pleadings in the second action. In his complaint, appellant stated causes of action in the same count in which he alleged that Bell had improperly diverted telephone calls placed to his business telephone and had improperly suspended his residential telephone service for non-payment of bills. He also attempted to incorporate by reference a cause of action stated in a complaint which he had filed in a separate action. Subsequently, he filed an "amendment" to his complaint by which he attempted to add a fourth cause of action. In this manner, appellant attempted to include three separate complaints, containing at least four causes of action, in one and the same action. As counsel for appellee has observed, it was difficult to sort out the causes of action and issues which appellant wished to litigate.

[ 330 Pa. Super. Page 283]

In response to Bell's preliminary objections, the trial court initially entered an order which placed appellant's action in abeyance until the issues which the court was able to discern from the pleadings had been submitted to and decided by the Pennsylvania Public Utility Commission. Subsequently, the court amended its order and dismissed those claims relating to appellee's "demanding the payment of bills, suspending service for failure to pay bills and requiring the making of a deposit of monies" because they were within the exclusive jurisdiction of the Public Utility Commission. Our review of appellant's pleadings, conducted with the same difficulty experienced by the trial court, persuades us that the order must be reversed.

Appellant's initial complaint contained averments of a dispute between the parties regarding monies due for Morrow's residential telephone service and Bell's alleged diversion of telephone calls by telling Morrow's business callers that his assigned telephone number was not in service. In a prior complaint, which appellant attempted to incorporate by reference in this action, appellant had demanded compensatory and punitive damages because of Bell's alleged failure to list appellant's telephone number in the directory published by appellee. Finally, in an amendment to his complaint, appellant claimed additional compensatory and punitive damages for mental anguish caused by appellee's threat to disconnect appellant's telephone service because of a debt which Bell sought to collect but which appellant said he did not owe.

Appellant's averments stated at least three, possibly four, causes of action.*fn4 An order dismissing one or more of these separate causes of action, therefore, was appealable. Praisner v. Stocker, 313 Pa. Super. 332, 459 A.2d 1255 (1983).

These causes of action, it seems clear, have been asserted to recover damages for Bell's alleged breaches of

[ 330 Pa. Super. Page 284]

    legal or contractual duties owed to appellant. An action for such damages belongs in the courts. Nagy v. Bell Telephone Co., 292 Pa. Super. 24, 29, 436 A.2d 701, 704 (1981). The issues inherent in these alleged causes of action are not peculiarly within the area of expertise of the Public Utility Commission. They can be decided as readily, and perhaps more appropriately, by a court or jury. Thus, there was no need for the court to abdicate its jurisdiction in favor of the Public Utility Commission. Moreover, in this case it is unnecessary and would be wasteful to adopt a bifurcated procedure. See: DeFrancesco v. Western Pennsylvania Water Co., supra 291 Pa. Super. at 378, 453 A.2d at 597; Elkin v. Bell Telephone Co., 491 Pa. 123, 134-135, 420 A.2d 371, 377 (1980).

The order of the trial court entered at Civil Action GD 82-00283 is affirmed. The order entered at Civil Action GD 82-00284 is reversed, and the action is remanded for further proceedings. Jurisdiction is not retained.


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