Mazzola v. Southern New England Telephone Co.

Decision Date19 August 1975
Citation363 A.2d 170,169 Conn. 344
Parties, 1975-2 Trade Cases P 60,439 Alan MAZZOLA v. The SOUTHERN NEW ENGLAND TELEPHONE COMPANY.
CourtConnecticut Supreme Court

Arthur P. Meisler, Willimantic, for appellant (plaintiff).

Milton L. Jacobson, Norwich, with whom were Jackson T. King, Jr., Norwich, James B. Curtin, and Judith A. Maynes, New Haven, for appellee (defendant).

Robert M. Langer, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., as amicus curiae.

Before HOUSE C.J., and COTTER, MacDONALD, LONGO and SPEZIALE, JJ.

COTTER, Associate Justice.

The plaintiff brought an action in the Superior Court seeking (1) injunctive relief, under § 35-34 of the General Statutes, against the defendant's continuing termination and interruption of his telephone service, and (2) money damages and attorney's fees and costs, under § 35-35 of the General Statutes, all as provided for in the Connecticut Anti-Trust Act, hereinafter referred to as the act. General Statutes §§ 35-24 to 35-44. The complaint alleges, inter alia, that the defendant's practices in enforcing certain specified policies were 'unlawful as they are for the purpose or have the effect of: (a) Fixing, controlling or maintaining prices, rates or quotations; (b) Refusing to deal or coercing, persuading or inducing third parties to refuse to deal with another person.' The Superior Court, however, refused to assume jurisdiction over the matters complained of and the plaintiff appealed.

The proceedings on appeal as followed by the parties raise only the question of the jurisdiction of the trial court to adjudicate the plaintiff's complaint, a question which can be determined on the present state of the record. Lusas v. St. Patrick's Roman Catholic Church Corporation, 123 Conn. 166, 168, 193 A. 204. We express our opinion upon those issues briefed and argued by the parties since they concern so fundamental an issue as 'the right of the trial court to proceed with the case.' Lusas v. St. Patrick's Roman Catholic Church Corporation, supra, 167-68, 193 A. 205; Eder v. Patterson, 132 Conn. 152, 155, 42 A.2d 794; see also In re Application of Title & Guaranty Co., 109 Conn. 45, 51-52, 145 A. 151; Storm Bros. v. Balcones Heights, 239 S.W.2d 842, 845-46 (Tex.Civ.App.); Maltbie, Conn.App.Proc. § 10 n. 22; and see Long v. Zoning Commission, 133 Conn. 248, 249, 50 A.2d 172.

I

Since the court declined to rule on the merits of the plaintiff's complaint, we need only determine whether its conclusion that it did 'not have jurisdiction with this matter' was erroneous. It appears that the court based this conclusion upon two alternative theories: (1) that the public utilities commission (hereinafter the PUC) had 'primary' jurisdiction of the matters complained of; or (2) that the activities of the defendant challenged by the plaintiff were 'immune' from antitrust liability. We consider whether either of these theories, which are interrelated in antitrust cases involving a regulated industry, is a proper basis for the trial court's decision as presented to us and as briefed by the parties and the amicus curiae.

Enacted in 1971, 1 the act incorporates, in modified form, and with notable exceptions, various provisions of such federal antitrust laws as, for example, the Sherman Act, 2 the Clayton Act, 3 the Antitrust Civil Process Act, 4 and of such state antitrust laws as the provisions embodied in the proposed Uniform State Antitrust Act. 5 See 14 H.R.Proc., 1971 Sess., pt. 9, p. 4182 (remarks of Rep. David H. Neiditz); see also Brodigan, 'The Connecticut Antitrust Act,' 47 Conn.B.J. 12, 16-17, 19, for a discussion of the statutory sources of the Connecticut provisions. The act repealed the previous state antitrust staute, General Statutes § 53-310, which was originally enacted in 1911 as 'An Act concerning Combinations to increase Prices of Necessities.' 6 During the approximately sixty years of its existence, no actions are reported to have been instituted under that act. Under these circumstances, reference to opinions of courts in other jurisdictions, federal and state, on pertinent antitrust law issues, where appropriate, are an aid to our interpretation of certain questions arising under the present Connecticut statute.

II

The doctrine of primary jurisdiction is a rule of judicial administration created by court decision in order to promote '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. Its basis is the concept that courts and administrative agencies are, as Justice Frankfurter suggested, 'collaborative instrumentalities of justice.' United States v. Morgan, 313 U.S. 409, 422, 61 S.Ct. 999, 85 L.Ed. 1429.

A

A premise upon which the primary jurisdiction doctrine is invoked is that the court itself has original 'subject matter' jurisdiction of the questions raised in the complaint filed in that court. "Primary jurisdiction' . . . applies where a claim is originally cognizable in the courts and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views.' United States v. Western Pacific R. Co., supra, 352 U.S. 64, 77 S.Ct. 165. The doctrine is thus distinguished from the concept of exclusive agency jurisdiction, which refers to matters which an agency alone has the power to adjudicate and of which the court has no jurisdiction. Terminal Warehouse Co. v. Pennsylvania R. Co., 297 U.S. 500, 514, 56 S.Ct. 546, 80 L.Ed. 827; see also Hughes Tool Co. v. Trans World Airlines, 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577, reh. denied, 410 U.S. 975, 93 S.Ct. 1434, 35 L.Ed.2d 707. Similarly, a court may not refer a controversy within its jurisdiction to an agency under this doctrine where the agency itself lacks jurisdiction; the court's jurisdiction in such cases is exclusive. Collens v. New Canaan Water Co., 155 Conn. 477, 480-81, 234 A.2d 825; 73 C.J.S. Public Administrative Bodies and Procedure § 40.

In addition, the primary jurisdiction doctrine is distinguishable from the concept of 'exhaustion of administrative remedies.' The latter requires a party to exhaust such remedies before seeking judicial relief and 'contemplates the situation in which the claim is initially enforceable exclusively by administrative action.' (Emphasis added.) Mitchell, 'Primary Jurisdiction-What It Is and What It Is Not,' 13 Proceedings A.B.A. Section of Anti-trust Law 26, 29; See, e.g., New Haven Water Co. v. Mauro Construction Co., 144 Conn. 195, 199, 128 A.2d 531; Levitt v. Public Utilities Commission, 114 Conn. 628, 634, 159 A. 878; 73 C.J.S. Public Administrative Bodies and Procedure § 40.

B

Within the context of antitrust law enforcement, it has been stated that all that the doctrine of primary jurisdiction is designed to do, 'and all that it properly does is to assure that the substantive exemptions from the antitrust laws created by . . . (the legislature) or required by the logic and structure of the regulatory scheme are not destroyed through by-passing the forum chiefly concerned with the regulation of the industry in question.' Von Mehren, 'The Antitrust Laws and Regulated Industries: The Doctrine of Primary Jurisdiction,' 67 Harv.L.Rev. 929, 932. However, the mere existence of a 'special regulatory scheme for particular aspects of an industry' does not, without more, 'render the more general provisions of the antitrust laws wholly inapplicable to that industry,' so that the court need not stay its hand 7 on an antitrust controversy and await action by the agency involved simply because the defendant in an antitrust suit is subject to regulation by a public administrative body. Carnation Co. v. Pacific Westbound Conference, 383 U.S. 213, 218, 86 S.Ct. 781, 15 L.Ed.2d 709; see also Otter Tail Power Co. v. United States, 410 U.S. 366, 373, 93 S.Ct. 1022, 35 L.Ed.2d 359, reh. denied, 411 U.S. 910, 93 S.Ct. 1523, 36 L.Ed.2d 201; Cascade Natural Gas Corporation v. El Paso Natural Gas Co., 386 U.S. 129, 131, 87 S.Ct. 932, 17 L.Ed.2d 814; Georgia v. Pennsylvania R. Co., 324 U.S. 439, 456-57, 65 S.Ct. 716, 89 L.Ed. 1051; Alabama Power Co. v. Alabama Electric Cooperative, Inc., 394 F.2d 672, 681-82 (5th Cir.) (opinion of Godbold, J., dissenting); Carter v. American Telephone & Telegraph Co., 365 F.2d 486, 496-97 (5th Cir.); United States Telephone Co. v. Central Union Telephone Co., 202 F. 66, 71 (6th Cir.), cert. denied, 229 U.S. 620, 33 S.Ct. 1049, 57 L.Ed. 1354; Hale & Hale, 'The Otter Tail Power Case: Regulation by Commission or Antitrust Laws,' 1973 Sup.Ct.Rev. 99, 100-102. Rather, '(a)ctivities which come under the jurisdiction of a regulatory agency nevertheless may be subject to scrutiny under the antitrust laws.' Otter Tail Power Co. v. United States, supra, 410 U.S. 372, 93 S.Ct. 1027. Thus, the rule is that a court should generally refer an antitrust controvery to an appropriate agency in cases where action thereon by that agency will result in a determination of the defendant's liability under the antitrust laws. 8 Carnation Co. v. Pacific Westbound Conference, supra, 383 U.S. 221-22, 86 S.Ct. 781, citing United States Navigation Co. v. Cunard Steamship Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408, and Far East Conference v. United States, 342 U.S. 570, 72 S.Ct. 492, 96 L.Ed. 576; California v. Federal Power Commission, 369 U.S. 482, 485-86, 488-89, 82 S.Ct. 901, 8 L.Ed.2d 54; see also Federal Maritime Board v. Isbrandtsen Co., 356 U.S. 481, 497-98, 78 S.Ct. 851, 2 L.Ed.2d 926; Jaffe, Judicial Control of Administrative Action, p. 147. Miron, 'Primary Jurisdiction,' 43 A.B.A. Antitrust L.J. 329, 333. It has been pointed out that...

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