Harmon v. Pacific Tel. & Tel. Co.

• Court: California Court of Appeals
• Writing for the Court: FOX; ASHBURN, J., and RICHARDS
• Citation: Harmon v. Pacific Tel. & Tel. Co., 6 Cal.Rptr. 542, 183 Cal.App.2d 1 (Cal. App. 1960)
• Decision Date: 20 July 1960
• Parties: Francis L. HARMON, Plaintiff and Appellant, v. PACIFIC TELEPHONE AND TELEGRAPH COMPANY, a corporation, Defendant and Respondent. Civ. 24403.

Page 542

6 Cal.Rptr. 542

183 Cal.App.2d 1

Francis L. HARMON, Plaintiff and Appellant, v. PACIFIC TELEPHONE AND TELEGRAPH COMPANY, a corporation, Defendant and Respondent.

Civ. 24403.

District Court of Appeal, Second District, Division 2, California.

July 20, 1960.

Francis L. Harmon, in pro. per.

Lawler, Felix & Hall, Leslie C. Tupper, Los Angeles, and Francis N. Marshall, San Francisco, for respondent.

FOX, Presiding Justice.

In his complaint plaintiff alleges that for some time prior to February, 1959, defendant had furnished him with two-party residential telephone service. The regular monthly charge therefor was a flat rate of $3.50 plus 35cents tax, making a total charge of $3.85 per month. Up to and including February 13, 1959, plaintiff had paid in full for all service charges for which he was billed. On the statement dated March 13, 1959, defendant billed plaintiff for message units and tax thereon in the amount of 52cents in addition to the regular monthly service charge and tax of $3.85. On the statement for April 13, 1959, defendant billed plaintiff for message units and tax thereon in the amount of $1.03 in addition to the regular monthly service charge and tax thereon. Plaintiff claimed that no one had made any calls from his number which were subject to a message unit charge and advised defendant that he would not pay such charges unless and until they were identified as to date and telephone number. Defendant refused either to identify the aforesaid calls or to eliminate them from its statements. Plaintiff refused to pay the aforesaid charges. As a consequence, defendant disconnected its service to plaintiff and removed its telephone from his premises.

Plaintiff alleges that an actual controversy exists between him and defendant in that defendant claims the right to charge its subscribers for 'message units' without identifying the calls, where plaintiff claims that he has a right to receive an identified list of such calls. Plaintiff seeks a declaration as to whether defendant has a right to charge him and other subscribers for 'message units' without identifying such calls upon demand.

Defendant demurred on the ground that the 'court has no jurisdiction over the subject matter of this action.' It was sustained without leave to amend. A judgment of dismissal followed. It is from this judgment that plaintiff has appealed.

Our Constitution and statutes have vested in the Public Utilities Commission the exclusive jurisdiction over the conditions under which public utilities render their public utility services. California Constitution, Art. XII, § 23; Public Utilities Code, §§ 701, 730, 761, 1709 and 1759. Section 1759 of the Public Utilities Code provides that no court except the Supreme Court has the power to review, reverse, correct, or annul any order or decision of the commission. See Gillies v. La Mesa etc. Irr. Dist., 54 Cal.App.2d 756, 762, 129 P.2d 941; Southern Cal. Tel. Co. v. Carpenter, 75 Cal.App.2d 336, 342-343, 171 P.2d 142. The subject matter of the controversy herein, i. e., the practice which should be followed in billing for message unit charges, obviously is one which is within the commission's exclusive jurisdiction. There was, therefore, no justiciable issue before the trial court. The fact that plaintiff seeks declaratory relief does not alter the rule that jurisdiction here is in the commission. This type of action does not enlarge the jurisdiction of the courts over subject matter of which they would not otherwise have jurisdiction. Hoyt v. Board of Civil Service Com'rs, 21 Cal.2d 399, 132 P.2d 804.

In 1934 the Public Utilities Commission (then known as the Railroad Commission) ordered the creation of the Los Angeles Extended Area. (So. Calif. Tel. Co., 39 C.R.C. 164, 172, 180-183.) In the course of the opinion the commission pointed out that the eventual recording...