County of Erie v. Verizon North, Inc.
County of Erie v. Verizon North, Inc.
Opinion of the Court
OPINION BY
The County of Erie (County) appeals from an order of the Court of Common Pleas of Erie County, which, after it concluded that primary jurisdiction over the matter lies with the Public Utility Commission (PUC), sustained Verizon North, Inc.’s (Verizon) jurisdictional preliminary objection and dismissed County’s Complaint without prejudice. County’s complaint alleged that Verizon did not fulfill its financial responsibilities regarding its 911 emergency communication system. The question now before us is whether, under the doctrine of primary jurisdiction, Coun
Pursuant to the Public Safety Emergency Telephone Act (911 Act),
Verizon’s obligations to County arise under both the 911 Act and its implementing regulations, codified as the Public Safety Emergency Telephone Program.
County alleges that there are approximately 225,000 individual telephone subscribers in Erie County that are serviced by Verizon and responsible for payment of the 911 fee; however, Verizon reports collecting the 911 fee from approximately 137,000 telephone subscribers. Because of this discrepancy, County attempted to obtain information pertaining to the telephone numbers of those who subscribe to Verizon. County alleges that when Verizon would not comply with its requests for information, it filed a Complaint in the trial court alleging that Verizon failed to remit the statutorily defined contribution rate for County’s 911 system. In its Complaint, County requests both legal and equitable relief, including an accounting, an injunction requiring Verizon to comply with its obligations, and payment of outstanding 911 fees.
The trial corut, after analyzing whether the PEMA and/or the PUC had jurisdietion, concluded that County had failed to exhaust its administrative remedies because it may seek assistance from PEMA, and because the PUC has primary jurisdiction over the subject matter. In so holding, the trial court examined case law analyzing the 911 Act and reasoned that the proper forum for the resolution of reimbursement and billing issues under that Act lay with the PUC.
County filed its Notice of Appeal with the Pennsylvania Superior Court on December 19, 2003. Subsequent to the Notice, the trial court ordered County to file its concise statement of matters complained of on appeal, which it filed on January 5, 2004. On January 9, 2004, the trial court entered an opinion wherein it incorporated and affirmed its November 2003 order. Verizon filed a motion to quash the appeal as interlocutory on February 2, 2004. By order dated February 17, 2004, the Superior Court transferred the appeal to this Court. On April 15, 2004, this Court denied the motion to quash. We must now decide whether the trial court erred or abused its discretion in sustaining Verizon’s jurisdictional preliminary objection and dismissing the Complaint without prejudice. See Elkin v. Bell Tel. Co., 491 Pa. 123, 420 A.2d 371 (1980).
County argues that the PUC does not have primary jurisdiction
It is well established that the courts of common pleas have unlimited jurisdiction over all actions and proceedings, except as may otherwise be provided by law. 42 Pa.C.S. § 931. However, the courts may refrain from hearing a case under the doctrine of “primary jurisdiction” where protection of the integrity of the regulatory scheme dictates that the parties preliminarily resort to the agency that administers the scheme for the resolution of disputes. Weston v. Reading Co., 445 Pa. 182, 282 A.2d 714 (1971). Thus, this doctrine recognizes that both courts and administrative agencies play a role in the adjudication of certain matters.
In determining whether the doctrine of primary jurisdiction applies, courts must look beyond the form of action to the essence of the underlying claims. T.W. Phillips Gas & Oil Co. v. Peoples Natural Gas Co., 89 Pa.Cmwlth. 377, 492 A.2d 776, 779 (1985). For example, in Morrow, the Superior Court, after carefully scrutinizing the nature of the claims, found that the action, which was couched in terms of equity, was actually a challenge to rates and services and, accordingly, determined that jurisdiction was vested in the PUC. Id., 479 A.2d at 551. There, a customer brought an action in equity seeking class action certification and challenging Bell’s rate and service practices, and another action seeking individual damages for tortious and/or contractual wrongs. The Court stated that “[w]hen 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.” Id. at 550-51 (quoting DiSanto v. Dauphin Consol. Water Supply Co., 291 Pa.Super. 440, 436 A.2d 197, 199 (1981)). The Morrow Court found that the equity action was a challenge to Bell’s rate and service practices, which is an area peculiarly and exclusively within the jurisdiction and expertise of the PUC. Id. at 551. The Court held that, although the customer’s “complaint contains averments of breach of contract, these averments [were] but a cover disguising the real thrust of [the] complaint. ...” Id.
Verizon, in contending that the trial court properly ruled that the PUC should hear this matter under the doctrine of primary jurisdiction, explains that the factual issue upon which the Complaint is based is whether Verizon correctly billed, collected, and remitted the 911 contribution rate to all lines providing “local exchange telephone service” as that term is defined in tariffs
Turning now to the substantive statutory provision of the 911 Act in issue, we
The interpretation of the term “local exchange telephone service” will, therefore, be dispositive of the merits of the case. The term “local exchange telephone service” is defined in the 911 Act as “[t]he provision of telephonic message transmission within an exchange, as such is defined and described in tariffs fíled with and approved by the [PTJC].” Id. (emphasis added). Thus, the fundamental question here concerns interpretation and application of a technical and specialized term defined in tariffs. It, therefore, involves matters that are best determined by the PUC, employing its unique expertise. Morrow, 479 A.2d at 550 (quoting Uni-Lite, Inc., 439 A.2d at 765). Moreover, a uniform rule explaining and applying this term to the assessment of 911 contribution rates is in the public interest. In addition, the PUC possesses the authority to order appropriate remedies; it can direct Verizon to make refunds, 66 Pa.C.S. § 1312, and to terminate any illegal practices, 66 Pa.C.S. § 501. Finally, allowing the dispute to be adjudicated in the first instance by the PUC will preserve all rights of the parties, while allowing them, as well as any subsequent reviewing court, to benefit from the PUC’s opinion. Therefore, we agree with the trial court that the doctrine of primary jurisdiction is correctly applied here.
Based on the foregoing discussion, we hold that the trial court did not abuse its discretion or commit error in determining that the PUC has primary jurisdiction over the matter. However, we conclude that it should have ordered the matter transferred, rather than dismissed without prejudice, and, therefore, we remand with the directions to the trial court to transfer it to the PUC pursuant to Section 5103 of the Judicial Code.
NOW, July 12, 2005, the order of the Court of Common Pleas of Erie County in the above-captioned matter is hereby affirmed to the extent that it concluded that the Pennsylvania Public Utility Commission has primary jurisdiction and the matter is remanded to the Court of Common Pleas of Erie County with the direction to transfer this matter to the Pennsylvania Public Utility Commission for disposition.
Jurisdiction relinquished.
. Act of July 9, 1990, P.L. 340, as amended, 35 P.S. § 7011-7021.1
. 4 Pa.Code §§ 120b.101-120.113.
. The Complaint pertinently states:
COUNT I — ACCOUNTING
[County is entitled to an accounting from Verizon with respect to Verizon’s] "manner and method of identifying and calculating the number of telephone subscribers and local access lines, including defendant Verizon’s criteria for identification of those telephone subscribers who are to be charged the County 911 Fee and the characterization and/or exemption of types and classes of local service and telephone subscribers.”
COUNT II — INJUNCTION
"To the extent that defendant Verizon has failed to fulfill its obligations [under the 911 Act] with respect to plaintiff Erie County's 911 system, defendant Verizon should be ordered to comply with such obligations.”
COUNT III — BREACH OF FIDUCIARY DUTY
“If it is determined that defendant Verizon has failed to [provide information, as well as bill, collect and remit to County the 911 contribution rate], then defendant Verizon is liable to plaintiff Erie County for breaching its fiduciary duty.”
COUNT TV — UNJUST ENRICHMENT
"If it is determined that defendant Verizon has billed, collected and failed to remit any portion of the County 911 Fee to plaintiff Erie County, it would be unconscionable and unjust to allow defendant Verizon to retain the benefit of the County 911 Fee moneys.”
COUNT V — CONVERSION
*361 “If it is determined that defendant Verizon has billed, collected and failed to remit any portion of the County 911 Fee to plaintiff Erie County, then defendant Verizon is liable to plaintiff Erie County for conversion.”
(Compl-¶¶ 37, 46, 51, 56, 61.)
. PEMA is the agency charged with the power and authority to promulgate, adopt, publish and use guidelines for the implementation of the 911 Act. See 35 P.S. § 7013(a).
. The trial court did not address the remaining two preliminary objections.
. The trial court also found that PEMA has administrative and enforcement authority under the 911 Act. However, it concluded, after reviewing relevant case law and interpreting the 911 Act, that the issue of whether Verizon properly remitted the correct contribution rate to County would be best resolved by the PUC. (Trial Ct. Op. at 5.)
. The following facts and dates are taken from the Opinion and Order of the PUC, dated April 1, 2005, No. C-20032036, which was attached to a letter dated April 28, 2005 submitted to the Court from counsel for Verizon.
The day after the trial court entered its order, County filed complaints with PEMA and the PUC, which were identical to the pleadings in the state court action. On December 12, 2003, PEMA issued a letter stating that it did not have jurisdiction over the subject matter because it believed that the PUC did; thus, it dismissed the action. On December 22, 2003, Verizon filed a Motion for a More Specific Pleading with the PUC. On January 2, 2004, County filed an Answer and Objections to Verizon’s Motion. On January 21, 2004, Verizon filed a Motion to Strike and Answer to County’s Objections. Administrative Law Judge (ALJ) Gesoff found that the complaint filed by County was styled as a common law tort and equity action, which failed to invoke the jurisdiction of the PUC. Accordingly, on February 2, 2004, ALJ Gesoff issued the First Interim Order, which granted Verizon's Motion, and directed County to file an amended complaint by February 18, 2004, and Verizon to file an answer by March 9, 2004. By letter dated February 18, 2004, County opined that the PUC lacked jurisdiction over its complaint and that it would not be filing an amended complaint for that reason. A hearing was scheduled before ALJ Nene for June 7, 2004, which subsequently was rescheduled and then canceled. By Initial Decision issued September 27, 2004, ALJ Nene dismissed County’s complaint for failure to prosecute. The parties filed Exceptions and Reply Exceptions thereto.
On April 1, 2005, the PUC entered an Order finding that it has jurisdiction to address the issue of whether Verizon properly billed the County’s 911 fee and remitted the appropriate funds to County. The PUC denied County’s Exceptions and ordered County to notify the PUC within ten days as to whether or not it wanted to proceed with its complaint. The Order instructed County that, if it so notified the PUC, the matter would be remanded for further proceedings. Such proceedings would determine whether or not Verizon properly counted and/or exempted telephone
. County argues in its brief to this Court that the trial court erred because it has subject matter jurisdiction over the Complaint. The Order issued by the trial court sustains the Defendant's "preliminary objection for lack of primary jurisdiction.” There is a distinction between primary jurisdiction and subject matter jurisdiction. The doctrine of primary jurisdiction does not operate to oust the subject matter jurisdiction of the court. Ostrov v. I.F.T., Inc., 402 Pa.Super. 87, 586 A.2d 409 (1991). Hence, although a court may have subject matter jurisdiction over a complaint, under the doctrine of primary jurisdiction, the court defers its jurisdiction until an agency ruling has been made. Id. at 413.
. The PUC has extensive statutory responsibility for ensuring the adequacy, efficiency, safety and reasonableness of public utility services. See Section 1501 of the Pennsylvania Public Utility Code, 66 Pa.C.S. § 1501. The courts of common pleas have traditionally retained original jurisdiction to entertain suits for damages against public utilities. See El-kin.
. The Supreme Court in Elkin noted that where a matter is not one peculiarly within an agency’s area of expertise, but is one which the courts or jury are equally well-suited to determine, the court must not abdicate its responsibility. Examples of when using the bifurcated process would be wasteful because no appreciable benefits would be forthcoming include:
[Fjailure to provide any phone service, or failure to print name and number in phone directories, etc. In this respect, we must distinguish Behrend v. Bell of Pennsylvania, 431 Pa. 63, 243 A.2d 346 (1968). Although that case involved the omission of customers’ names and numbers from the Pittsburgh phone directory, the relief sought was not damages. Complainant prayed, in equity, that Bell and the directory printers, the Reuben H. Donnelley Corporation, be compelled to republish or amend the phone directories, or, alternatively, to distribute corrections to all persons and entities who received the faulty directories. Given the nature of the relief sought, it was eminently more appropriate to have the PUC, endowed with authority to render such relief if proper, hear the case in the first instance. Matters such as peak-hour load, WATS line distributions, rates, etc. are clearly within the purview of the PUC’s expertise.
Id. at 135 n. 8, 420 A.2d at 377 n. 8 (emphasis added).
. Pursuant to the Public Utility Code, "tariff” is defined as:
All schedules of rates, all rules, regulations, practices, or contracts involving any rate or rates, including contracts for interchange of service, and, in the case of a common carrier, schedules showing the method of distribution of the facilities of such common carrier.
Act of July 1, 1978, P.L. 598, as amended, 66 Pa.C.S. § 102.
. As additional support for our position, we observe that the PUC has been statutorily designated as the entity to handle issues regarding 911 contribution rates and reviews of 911 county plans, wherein it can modify 911 contribution rates that it finds excessive to meet the costs stated in a county’s plan. Furthermore, the PUC is the entity that approves requests for 911 contribution rate changes. See 35 P.S. §§ 7015(e); 7015(h); 7013(c). While this case does not deal with modification, acceptance, or approval of 911 contribution rates, it does involve the proper interpretation of how those rates are to be applied to the various types of telephone lines within the 911 system area, an issue similar in nature to those specifically conferred on the PUC under these Sections of the 911 Act.
. Section 5103(a) of the Judicial Code, in pertinent part, states:
If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or magisterial district judge shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee tribunal on the date when the appeal or other matter was first filed in a court....
42 Pa.C.S. § 5103(a) (emphasis added).
Reference
- Full Case Name
- COUNTY OF ERIE, Pennsylvania v. VERIZON NORTH, INC., formerly GTE North, Inc.
- Cited By
- 13 cases
- Status
- Published