Boston Edison Co. v. Brookline Realty & Inv. Corp.

• Decision Date: 20 June 1980
• Citation: 405 N.E.2d 995,10 Mass.App.Ct. 63
• Court: Appeals Court of Massachusetts
• Parties: BOSTON EDISON COMPANY v. BROOKLINE REALTY & INVESTMENT CORP.

Page 995

405 N.E.2d 995

10 Mass.App.Ct. 63

BOSTON EDISON COMPANY v. BROOKLINE REALTY & INVESTMENT CORP.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 20, 1980.

Decided June 20, 1980.

James L. Rudolph, Boston, for plaintiff.

Michael Eby, Boston, for defendant.

Before ARMSTRONG, DREBEN and KASS, JJ.

KASS, Justice.

While the Superior Court judge correctly decided that the related administrative law doctrines of primary jurisdiction and exhaustion of administrative remedies required that a dispute over electric power charges be adjudicated first by the Department of Public Utilities of the Commonwealth (D.P.U.), the fact of the plaintiff's attachment of property of the defendant required that the judicial proceedings be stayed, rather than dismissed.

We take our background facts largely from the memorandum of decision of the motion judge, as supplemented by affidavits of the parties which appear in the record. Brookline Realty & Investment Corp. (Realty) owned adjoining buildings numbered 10 and 20 Thorne Street, Mattapan. These buildings are identical in layout, size and construction. In order to save energy, Realty installed a time clock mechanism at 10 Thorne Street which shut off the electricity in that building for five hours during the night. Billings for electricity furnished by the plaintiff (Edison) to the two buildings after installation of the shut-off device were identical, leaving the fair inference that something at building number 10 was not working right: the time clock or the electric meter. Realty protested Edison's bills. Edison made a calibration test of the meter at number 10, concluded its bills were accurate and notified Realty accordingly. Realty exercised its right to appeal the bills to the D.P.U. conformably with regulations adopted under G.L. c. 164, §§ 76 and 76C, ¹ notably 220 Code Mass.Regs. 25.01(1) (1979).

Under the D.P.U.'s regulatory scheme, the utility company (in this case Edison) must investigate the customer's complaint and "make a substantial effort to resolve" it. 220 Code Mass.Regs. 25.02(4)(a). Following written notice of the company's decision, the customer may appeal to the D.P.U.'s Consumer Division, where both sides are to be heard by a representative of the Department. But this hearing before a representative of the Department is not an adjudicatory proceeding for purposes of G.L. c. 30A, and the ruling of the D.P.U. representative may be appealed to the D.P.U. within seven days for a c. 30A adjudicatory hearing.

The parties got as far as the informal hearing stage on June 2, 1976, and that procedure ended with a D.P.U. report bearing an enigmatic notation by its representative that an "app(ointmen)t will be made to check out building" and that a "(c)heck for 1 building # 20 ($6,000) will be sent to Boston Edison." Who was to make an appointment, whose technician was to check the building, and to whom a report was to be made are left to conjecture. Both parties signed the report and Realty paid the $6,000. As the judge observed, "(T)here is no indication of any subsequent appointment or effort ever being made to 'check out' 10 Thorne Street, nor of any finding or determination by the D.P.U. as to the accuracy of Boston Edison's bill for that building."

Meanwhile, electricity bills at number 10 continued to add up. On May 17, 1978, Edison filed its complaint for arrearages through April 29, 1977, in accordance with an account annexed, in the amount of $26,052.93. Some weeks were chewed up in removal from the Boston Municipal Court to the Superior Court. Edison then moved for a writ of attachment against Realty pursuant to Mass.R.Civ.P. 4.1, 365 Mass. 737 (1974); that motion was allowed; and an attachment on the defendant's real property in Suffolk County was made. ² Realty responded with a motion to dismiss the complaint for want of subject matter jurisdiction and failure to state a claim upon which relief can be granted, the motion resting on dual foundations: that the D.P.U. had primary jurisdiction over the subject matter and that Edison had failed to exhaust its administrative remedies.

We agree with the motion judge that the inconclusive proceeding on June 2, 1976, with its resultant oracular order, did not amount to an adjudication by the D.P.U. of the parties' dispute. No final decision by the D.P.U. representative appears in the record and there was, therefore, no basis on which Realty could register an appeal for a full department hearing. Such an appeal may be taken only upon "being notified of the decision of the Department's representative." 220 Code Mass.Regs. 25.02(4)(b). A pronouncement by the D.P.U. which contemplates further fact finding and determinations of factual and legal issues is tentative and does not establish a stepping stone for an appeal. Western Mass. Elec. Co. v. Department of Pub. Util., 373 Mass. 227, 230, 237, 366 N.E.2d 1232 (1977).

As to the billings through June 2, 1976, which the parties brought before the D.P.U., administrative remedies were not exhausted. As to the billings after June 2, 1976, the judge was right in observing that primary jurisdiction for resolution of the dispute lay with the administrative agency which already had apiece of the interrelated problem; that is, a decision about the first batch of bills would certainly guide, and probably govern, a decision about the second batch. The exhaustion doctrine prevents premature judicial interference with pending administrative proceedings, while the primary jurisdiction doctrine denies jurisdiction where agency proceedings have not yet begun. J. & J. Enterprises, Inc. v. Martignetti, 369 Mass. 535, 539-540, 347 N.E.2d 645 (1976). Both doctrines are in theory and practical effect the same and stem from the "general principle which ordinarily serves to preclude judicial consideration of a question while there remains any possibility of further administrative action." Id. at 540, 341 N.E.2d at 648 (quoting 2 Cooper, State Administrative Law 572 (1965)). Murphy v. Administrator of Div. of Personnel Admn., --- Mass. ---, --- ^a, 386 N.E.2d 211 (1979). Moreover, it is the practice of the D.P.U. to review an entire account's billing as of the time of the adjudicatory hearing, and thus, it would assert jurisdiction over the post June 2, 1976, bills even though Realty had not formally filed a dispute of them. Matter of TK, LR, RA Realty Trust, D.P.U. Dec. No. 19657, at 3 (July 24, 1979). We see nothing in the status of the proceedings before the D.P.U. that would warrant deviation from the general rule that courts do not act on cases where administrative proceedings are incomplete. Gordon v. Hardware Mut. Cas. Co., 361 Mass. 582, 587, 281 N.E.2d 573 (1972); East Chop Tennis Club v. Massachusetts Commn. Against Discrimination, 364 Mass. 444, 448, 305 N.E.2d 507 (1973); Murphy v. Administrator of Div. of Personnel Admn., --- Mass. at --- - --- ^b, 386 N.E.2d 211.

Where, however, barring a plaintiff from court might materially prejudice his rights, dismissal is not the appropriate remedy to accomplish the purpose of prior resort to administrative remedies. J. & J. Enterprises, Inc. v. Martignetti, 369 Mass. at 540-541, 341 N.E.2d 645. In such cases a stay of judicial proceedings may be the preferable remedy. Id. at 541, 341 N.E.2d 645. So, for example, dismissal of an action is not in order where the plaintiff may be foreclosed from certain avenues of judicial relief by statutes of limitation or where the agency is unable to afford plenary relief. Id. at 540, 341 N.E.2d 645. Compare Nelson v. Blue Shield of Mass., Inc., --- Mass. --- ^c, 387 N.E.2d 589 (1979); Cf. Floors, Inc. v. B. G. Danis of New England, Inc., 7 Mass.App. ---, --- ^d, 387 N.E.2d 1166 (1979), Id. --- Mass. --- ^e, 401 N.E.2d 839 (1980), recognizing the propriety of staying rather than dismissing a court action to protect a plaintiff's rights where a time limit existed in which to begin a suit. Similarly a Federal court has kept an...