Feingold v. Bell of Pennsylvania

ROBERTS, Justice,

dissenting.

Appellants Allen Feingold and A. L. Feingold Associates filed a complaint in equity in the Court of Common Pleas of Philadelphia, alleging that appellee Bell of Pennsylvania: (1) wrongfully disconnected a device designed to refer persons calling appellants to appellants’ correct telephone number; (2) wrongfully disconnected appellants’ telephone service upon discovering appellants had attached to their telephone a privately maintained answering service; and (3) wrongfully refused to provide appellants with mobile telephone service. Appellants sought compensatory and punitive damages along with injunctive relief. The court of common pleas entered an order dismissing appellants’ complaint because appellants had failed to initiate this action before the proper administrative agency, the Public Utility Commission (PUC).

The majority reverses the order of the court of common pleas. It concludes that the trial court’s adherence to the doctrine requiring proceedings to begin before the relevant administrative tribunal erects an unjustifiable procedural obstacle to recovery. The majority premises its holding on the ground that this case “merely raises the question of whether appellants’] alleged damages were proximately caused by a breach of a legal duty owed appellants] by appellee.” According to the majority, such issues are traditionally disposed of by courts without the aid of administrative expertise.

I do not agree. The extent of appellee’s obligations regarding telephone referral devices, the maintenance of service in the face of unauthorized connections, and mobile service are not at all obvious. The majority permits these unclear issues to be resolved in the court of common pleas. Such a result is an unwarranted departure from the sound doctrine which encourages the initial resolution of important issues to be made in the proper administrative forum. Accordingly I dissent.

The doctrine which requires proceedings involving a regulated enterprise to begin before the regulating agency promotes “proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pacific R. Co., 352 U.S. 59, 63, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). The regulatory agency has “primary jurisdiction” over such disputes so that uniform, consistent, and expert judgments can be rendered on specific issues. Davis, Administrative Law Treatise § 20.01 (Supp.1977). Such a tribunal, “by specialization, by insight gained through experience and by more flexible procedure,” is better equipped than a court to make these judgments. Far East Conference v. United States, 342 U.S. 570, 574-75, 72 S.Ct. 492, 494, 96 L.Ed. 576 (1952). So that the administrative agency can discharge its responsibility, courts limit their involvement in the resolution of this class of disputes. See Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907); Schwartz, Administrative Law § 166 (1976).

These considerations apply with full force to cases falling within the regulatory domain of the PUC. In Behrend v. Bell Telephone Co. of Pennsylvania, 431 Pa. 63, 243 A.2d 346 (1968), a telephone subscriber sought to compel the publication of corrected telephone directories. We concluded that the proceeding should have been brought before the PUC:

“The Public Utility Commission has been vested by the Legislature with exclusive original jurisdiction over the reasonableness, adequacy and sufficiency of public utility services, including telephone services and directories.

In Lansdale Borough v. Philadelphia Electric Company, 403 Pa. 647, pages 650-651, 170 A.2d 565, page 566, the Court pertinently said (page 650): 'Although we still possess the right of judicial scrutiny over the acts of the PUC, no principle has become more firmly established in Pennsylvania law than that the courts will not originally adjudicate matters within the jurisdiction of the PUC. Initial jurisdiction in matters concerning the relationship between public utilities and the public is in the PUC — not in the courts.’ ”

431 Pa. at 66-67, 243 A.2d at 347-48 (footnote deleted). Accord, Duquesne Light Co. v. Borough of Monroeville, 449 Pa. 573, 298 A.2d 252 (1972); Einhorn v. Philadelphia Electric Co., 410 Pa. 630, 190 A.2d 569 (1963).

The precise obligations of appellee in this case must be viewed in connection with appellee’s duty to customers generally. This cannot be accomplished by interpreting statutory provisions. Many factors, all of which may have important effects on the public, the regulated enterprise, and those situated similarly to the person aggrieved, must be considered. Extending the obligations of a telephone company to encompass these circumstances may pose economic hardship or create a conflict in duties which cannot be detected by a court. A court’s formalized proceedings may inhibit the discovery of information relevant to the technological capability of appellee to provide such services. Important facts can easily be overlooked because of a court’s unfamiliarity with their significance. Because of their shortcomings, courts are relieved of such matters by the PUC.

By requiring the trial court to proceed to the merits of this case, the majority encourages the court to engage in exactly the kind of speculation the doctrine of primary jurisdiction was designed to eliminate. Moreover, the decision invites other persons similarly situated to submit to courts throughout the Commonwealth their grievances against appellee. These courts will have to render equally speculative judgments and will inevitably reach conflicting results. The orderly coordination of administrative adjudication will quickly be replaced by unneeded regulatory chaos.

The majority justifies its decision to depart from the recognized doctrine of primary jurisdiction on the ground that the PUC provides appellants an insufficient remedy. The majority reasons that the interest in judicial economy is furthered by allowing a tribunal with full remedial powers to consider the dispute. What the majority ignores, however, is that the latter tribunal is not equipped to resolve the underlying issues in this controversy. Judicial economy, if any, comes only by paying the great price of having these regulatory issues decided in a haphazard, ad hoc, and inconsistent manner.

Whether a party asks for a remedy beyond the power of the relevant administrative agency does not control the question whether that agency has primary jurisdiction. Rather, that question is controlled by whether the administrative agency can clarify issues in dispute. Here, the PUC has knowledge, procedures, and experience which can enhance the resolution of appellee’s duties. I believe that the trial court correctly recognized the need for the PUC’s initial adjudication of the issues in this case.

I therefore dissent, and would affirm the order.

Mr. Justice ROBERTS also dissents from the order of the Court denying reargument. He would grant reargument for the reasons set forth in his dissenting opinion and the reasons urged in the Applications for Reargument filed by party-applicant Bell of Pennsylvania and amicus -applicants Public Utility Commission, Pennsylvania Electric Association, Pennsylvania Gas Association, Pennsylvania Independent Telephone Association, and Pennsylvania Power and Light Company.