DeFrancesco v. Western Pennsylvania Water Co.

• Decision Date: 02 October 1981
• Citation: 291 Pa.Super. 152,435 A.2d 614
• Parties: Joseph G. DeFRANCESCO and Frank Crea T/D/B/A Mt. Washington Ornamental Iron Works Company and Frank G. DeFrancesco and Frank Crea, as Individuals v. WESTERN PENNSYLVANIA WATER COMPANY, a Corporation, Appellant. Joseph F. LOY and Bernice Loy T/D/B/A Joseph F. Loy Tire Service Inc. v. WESTERN PENNSYLVANIA WATER COMPANY, a Corporation, Appellant.
• Court: Pennsylvania Superior Court

Page 614

435 A.2d 614

291 Pa.Super. 152

Joseph G. DeFRANCESCO and Frank Crea T/D/B/A Mt. Washington

Ornamental Iron Works Company and Frank G.

DeFrancesco and Frank Crea, as Individuals v. WESTERN PENNSYLVANIA WATER COMPANY, a Corporation, Appellant.

Joseph F. LOY and Bernice Loy T/D/B/A Joseph F. Loy Tire Service Inc. v. WESTERN PENNSYLVANIA WATER COMPANY, a Corporation, Appellant.

Superior Court of Pennsylvania.

Argued May 22, 1981.

Filed Oct. 2, 1981.

George I. Buckler, Pittsburgh, for appellant.

C. Robert Keenan, III, Pittsburgh, for appellees.

Before CERCONE, P. J., and MONTGOMERY and VAN der VOORT, JJ.

CERCONE, President Judge:

This case involves an appeal taken by Western Pennsylvania Water Company (hereinafter West Penn) challenging, inter alia, ¹ the jurisdiction of the court of common pleas to hear this case. Finding that initial jurisdiction over this controversy is vested in the Pennsylvania Public Utility Commission, we vacate the judgments of the lower court awarding damages to the appellees herein.

On August 11, 1973, a fire erupted in a large pile of tires located in the rear of property owned by Joseph F. Loy Tire Service, Inc. (hereinafter Loy) at 1655 through 1659 Saw Mill Run Boulevard, Pittsburgh, Pennsylvania. The Fire Department of the City of Pittsburgh promptly arrived on the scene while the flames were still confined to one area. However, due to a problem with both the volume and the sporadic nature of the water supply being pumped from the fire hydrants at that location, the firemen were unable to confine the fire which then spread across the Loy property and onto the adjoining property of Joseph G. DeFrancesco and Frank Crea, trading and doing business as Mt. Washington Ornamental Iron Works Company and Joseph G. DeFrancesco and Frank Crea as individuals (hereinafter DeFrancesco). Both businesses were completely consumed by the fire.

On March 13, 1975, Loy filed a complaint in trespass and in assumpsit in the Court of Common Pleas of Allegheny County alleging that West Penn failed to provide adequate and sufficient water service to combat the blaze. On March 26, 1975, DeFrancesco filed a similar complaint. Throughout the trial, West Penn objected to the admission of any evidence regarding the adequacy or sufficiency of the water supply, asserting that this matter was not within the jurisdiction of the courts to adjudicate but within the exclusive jurisdiction of Pennsylvania Public Utility Commission. Appellees, Loy and DeFrancesco, contend this case does not involve the adequacy or sufficiency of water service but is one involving the law of negligence in which the traditional tort obligations and principles are applicable. The lower court, however, entertained jurisdiction over this controversy and the jury returned verdicts in favor of appellees Loy and DeFrancesco awarding damages in the amounts of $173,000 and $72,000 respectively, plus interest in the amounts of $1,663.39 and $692.28 respectively. After West Penn's motions for new trial and for judgment notwithstanding the verdict were denied by the court en banc, this appeal followed.

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. See Elkin v. Bell Tel. Co. of Pennsylvania, 491 Pa. 123, 420 A.2d 371 (1980); Allport Water Auth. v. Winburne Water Co., 258 Pa.Super. 555, 393 A.2d 673 (1978). As early as 1961, the Pennsylvania Supreme Court stated:

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. It has been so held involving rates, service, rules of service, extension and expansion, hazard to public safety due to use of utility facilities, installation of utility facilities, location of utility facilities, obtaining, alerting, dissolving, abandoning, selling or transferring any right, power, privilege, service, franchise or property and right to serve particular territory.

Lansdale Boro. v. Phila. Elec. Co., 403 Pa. 647, 650-651, 170 A.2d 565, 567 (1961) (footnotes omitted).

In Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977), however, the Court held that the PUC does not have jurisdiction over suits for damages based upon the failure to provide adequate and sufficient services and, therefore, such matters can initially go to the courts. ² Finally, and most recently, the Court has decided Elkin v. Bell Tel. Co., 491 Pa. 123, 420 A.2d 371 (1980) in which the Court approved a bifurcated procedure of referring damage cases involving utility services, facilities or rates to the PUC to make an initial determination of whether the utility has or has not met up to statutorily mandated standards. ³ According to this procedure, a pending action for damages in the court of common pleas is either rendered moot if the PUC finds that the services are reasonable and adequate, or the action proceeds forward based upon the PUC findings of the inadequacy and unreasonableness of the service. ⁴ See also Feingold v. Bell of Pennsylvania, 477 Pa. 1, 18-19, 383 A.2d 791, 799-801 (1977) (Pomeroy, J., dissenting). Moreover, the Court in Elkin decided that Feingold did not oust the PUC of jurisdiction "for all purposes in any cases involving an action for damages." 491 Pa. at 130, 420 A.2d at 375 (emphasis in original). The decision stated that such an "interpretation of Feingold is too broad and would 'virtually strip' the PUC of all jurisdiction merely by framing the allegations in contractual and/or trespassing terminology, and demanding damages." Id. ⁵ The Elkin decision cited extensively from Justice Pomeroy's "insightful dissenting opinion in Feingold which expressed concern for such a sweeping interpretation." Id. In fact, it is Justice Pomeroy's dissent espousing the bifurcated procedure which is now expressly vindicated by Elkin:

.. And, of course, the PUC is endowed by the Public Utility Code with authority to enforce compliance by public utility companies with the standards of service to which legally the companies must adhere. See Act of May 28, 1937, P.L. 1053, art. IX, § 901, 66 P.S. § 1341 et seq. The PUC, accordingly, is the agency which the legislature has created both to interpret the standards of service of a public utility and to enforce them. The only power which the Commission lacks in the present case is the ability to award damages for past breaches of duty by the Telephone Company, assuming such breaches have occurred and entail damages. This lack, however, is not such as oust the PUC of its primary jurisdiction. Resort to the courts may well be based on PUC findings which will then be in hand. The majority, however, would virtually strip the PUC of all jurisdiction merely because a demand for damages is contained in appellant's complaint. Such a result is unwarranted.

The proper procedure in a case such as the instant one is, I suggest, to stay the proceeding in the court of common pleas until a determination of the questioned standards of service can be had by the PUC in accordance with Section 412 of the Public Utility Code (66 P.S. § 1182). This course of procedure is necessary because the dispute is uniquely within the expertise of the PUC; it is only the relief sought, i. e., the allowance of damages, which is beyond the legislative grant of powers to the Commission. The proposition is succinctly put in Professor Davis' authoritative treatment of administrative law:

"(1) On the question whether the doctrine (of primary administrative jurisdiction) applies to problems or relief which are beyond administrative jurisdiction, the theory seems reasonably clear. The test is not whether some parts of the case are within the exclusive jurisdiction of the courts; the test is whether some parts of the case are within the exclusive jurisdiction of the agency. Because of the purpose of the doctrine to assure that the agency will not be by-passed on what is especially committed to it and because resort to the courts is still open after the agency has acted, the doctrine applies even if the agency has no jurisdiction to grant the relief sought." (Emphasis added.)

Davis, Administrative Law Treatise, § 19.07, p. 39 (1958). See also Davis, Administrative Law of the Seventies, § 19.07, pp. 444-45 (1976); Annotation, Doctrine of Primary Administrative Jurisdiction as Defined and Applied by the Supreme Court, 38 L.Ed.2d 796, § 8 (1974); Jaffe, Judicial Control of Administrative Action, pp. 138-39 (1965). Accord: United States v. Michigan National Corp., 419 U.S. 1, 5, 95 S.Ct. 10, 12, 42 L.Ed.2d 1, 5 (1974); Pan American World Airways, Inc. v. United States, 371 U.S. 296, 313, n.19, 83 S.Ct. 476, 486, n.19, 9 L.Ed.2d 325, 337, n.19 (1963); Hewitt-Robins v. Eastern Freight-Ways, Inc., 371 U.S. 84, 83 S.Ct. 157, 9 L.Ed.2d 142 (1963); Elkins (sic) v. Bell Telephone Co., 247 Pa.Super. 505, 372 A.2d 1203 (1977) ....

Once the administrative tribunal has determined the issues within its jurisdiction, then the temporarily suspended civil litigation may continue. The direction and scope of the litigation will of course be guided and determined by the nature of the agency adjudication.

477 Pa. at 18-22, 383 A.2d at 799-801 (Pomeroy, J., dissenting). He further stated in footnote five that:

It may be worth noting, however, that should the claimant seek review of the PUC determination, his right to do so would not be affected by the procedure here advocated. See Section 508(e) of the Appellate Court Jurisdiction Act of 1970, July 31, P.L. 673, No. 223 (17 P.S. § 211.508(e)) which transferred to and vested in the ...