Perron v. Treasurer of City of Woonsocket

• Citation: 403 A.2d 252,121 R.I. 781
• Decision Date: 02 July 1979
• Docket Number: No. 77-290-A,77-290-A
• Parties: Gilbert R. PERRON et al. v. TREASURER OF the CITY OF WOONSOCKET et al. ppeal.
• Court: United States State Supreme Court of Rhode Island

Page 252

403 A.2d 252

121 R.I. 781

Gilbert R. PERRON et al. v. TREASURER OF the CITY OF WOONSOCKET et al.

No. 77-290-Appeal.

Supreme Court of Rhode Island.

July 2, 1979.

[121 R.I. 787] William G. Savastano, Woonsocket, for plaintiffs.

Aram P. Jarret, Jr., Asst. City Sol., Woonsocket, Zimmerman, Roszkowski & Brenner, Richard E. Kyte, Jr., Woonsocket, for defendants.

OPINION

KELLEHER, Justice.

The plaintiffs in this civil action are appealing the Superior Court's dismissal of their two-count complaint wherein in one count they charge the city of Woonsocket (the city) with violating the provisions of the State's Unfair Trade Practices and Consumer Protection Act, and in the other count they seek a declaratory judgment concerning their right to the continuous operation, repair, and maintenance of a private water line owned by Leo A. Cabana (Cabana).

A review of the pleadings and memoranda accompanying the 12(b)(6) and other motions to dismiss filed by both the city and Cabana indicates that all of the plaintiffs own and reside in property located on Greenville Road in North Smithfield. The city sells water to the residents of its neighboring communities. The Greenville Road houses were originally serviced by a 2-inch main which was installed in 1924 and owned by Albert Valliere (Valliere). During the early portion of 1975, the city let the fact be known that it would no longer allow its product to enter the Valliere main because the pipe was leaking. The city agreed with the Greenville Road residents that if they could obtain Cabana's permission to tie into his 6-inch Transite main, the city would install the necessary connections at a cost to each owner of $85. Cabana was willing to oblige if the consumers would each pay $350 for each tie-in. Ten such individuals said yes, and all of them paid the city the $85 tie-in fee. When the city's employees attempted the first tie-in, they broke the main. The city spent $1,000 to repair the break, and at this time the city returned the $85 deposit to each of the remaining nine consumers and told them to look elsewhere for relief.

Some of the consumers appealed to the Rhode Island Division of Public Utilities (the division). On May 2, 1975, the division held a formal hearing on Gilbert R. Perron's complaint that the city was about to shut off the supply of water to the Valliere main. The division published an opinion in which it ruled that the city had a right to shut off the water until the leak was repaired. In time, plaintiffs engaged the services of a plumber, who made the necessary connection to Cabana's Transite main.

In the first count, plaintiffs recite the experiences to which we have just alluded and then observe that the actions of the city's "agents, servants, and employees constitute conduct which creates a likelihood of confusion and misunderstandings and are unfair and deceptive to the Plaintiffs-consumers and mislead and deceive consumers." The count concludes with a prayer for damages, compensatory as well as punitive, and a reasonable attorney's fee. Later, in seeking a declaratory judgment, plaintiffs allege that the city, jointly with Cabana, constitutes a public utility and asks that the Superior Court remove the cloud of "uncertainty and insecurity" which hangs over their right to use the 6-inch main and the city's and Cabana's obligations to repair, operate, maintain, and utilize the main.

The trial justice, in granting the city's and Cabana's motions to dismiss, based her grant on her review of "the entire file" in the above-captioned case. Since the trial justice, by her reference to "the entire file," appears to have gone beyond the assertions of the pleadings, we shall consider the motions to dismiss as motions for summary judgment. Little v. Barnett Carter & Co., R.I., 382 A.2d 815, 816 (1978); Goldstein v. Rhode Island Hospital Trust National Bank, 110 R.I. 580, 587, 296 A.2d 112, 116 (1972); Warren Education Association v. Lapan, 103 R.I. 163, 168, 235 A.2d 866, 869-70 (1967). Thus, we look at the record to determine if there exists a question of law or a question of fact to be resolved. If there is a factual issue unresolved, then this controversy must be remanded forthwith to the trial court. If the issue is solely one of law, we shall resolve it.

An examination of the record makes clear that at no time did plaintiffs ever claim that Cabana dealt with them in any manner, shape, or fashion that would make his actions come within the reach of the Deceptive Trade Practices Act. Clearly, then, the judgment for Cabana, insofar as it relates to the first count, is amply justified.

On the other hand, plaintiffs' description of the city employees' conduct embodies within it the statutory definition of unfair or deceptive acts or practices. See G.L. 1956 (1969 Reenactment) § 6-13.1-1(e)(12) to (14). Further, the Act makes it clear that its prohibitions are far reaching because they apply to the "advertising, offering for sale, sale, or distribution of any services and any property, tangible or intangible, real, personal or mixed, and any other article, commodity, or thing of value wherever situate, and shall include any trade or commerce directly or indirectly affecting the people of this state." Section 6-13.1-1(b).

Section 6-13.1-4 of the Act exempts from its operation "actions or transactions permitted under laws administered by the department of business regulation or other regulatory body or officer acting under statutory authority of this state or...