State ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson

Citation201 W.Va. 402,497 S.E.2d 755
Decision Date17 July 1997
Docket NumberATLANTIC-WEST,No. 23942,23942
CourtSupreme Court of West Virginia
Parties, 1997-2 Trade Cases P 71,907 STATE of West Virginia ex rel. BELLVIRGINIA, INC., a West Virginia Corporation, and Bell Atlantic Corporation, a Delaware Corporation, Petitioners, v. Honorable Lyne RANSON, Judge of the Circuit Court of Kanawha County; E. Keith Morgan, Michael T. Sword, Daniel P. O'Connor, Jean Sanson, dba C.J.'s Auto Sales; and Doris J. Graley, individually and on behalf of all others similarly situated, Respondents.
Dissenting Opinion of Justice Maynard

July 17, 1997.

Syllabus by the Court

1. Where an administrative agency and the courts have concurrent jurisdiction of an issue which requires the agency's special expertise and which extends beyond the conventional experience of judges, the doctrine of primary jurisdiction applies. In such a case, the court should refrain from exercising jurisdiction until after the agency has resolved the issue. The court's decision whether to apply the primary jurisdiction doctrine is reviewed on appeal under an abuse of discretion standard.

2. In determining whether to apply the primary jurisdiction doctrine, courts should consider factors such as whether the question at issue is within the conventional experience of judges; whether the question at issue lies peculiarly within the agency's discretion or requires the exercise of agency expertise; whether there exists a danger of inconsistent rulings; and whether a prior application to the agency has been made.

3. "A court must use a two-step approach when analyzing whether personal jurisdiction exists over a foreign corporation or other nonresident. The first step involves determining whether the defendant's actions satisfy our personal jurisdiction statutes set forth in W.Va.Code, 31-1-15 [1984] and W.Va.Code, 56-3-33 [1984]. The second step involves determining whether the defendant's contacts with the forum state satisfy federal due process." Syl. pt. 5, Abbott v. Owens-Corning Fiberglas Corp., 191 W.Va. 198, 444 S.E.2d 285 (1994).

4. When a defendant files a motion to dismiss for lack of personal jurisdiction under W.Va.R.Civ.P. 12(b)(2), the circuit court may rule on the motion upon the pleadings, affidavits and other documentary evidence or the court may permit discovery to aid in its decision. At this stage, the party asserting jurisdiction need only make a prima facie showing of personal jurisdiction in order to survive the motion to dismiss. In determining whether a party has made a prima facie showing of personal jurisdiction, the court must view the allegations in the light most favorable to such party, drawing all inferences in favor of jurisdiction. If, however, the court conducts a pretrial evidentiary hearing on the motion, or if the personal jurisdiction issue is litigated at trial, the party asserting jurisdiction must prove jurisdiction by a preponderance of the evidence.

5. "A parent-subsidiary relationship between corporations, one of which is 'doing business' in West Virginia, does not without the showing of additional factors subject the nonresident corporation to this state's jurisdiction. However, if the parent and its subsidiary operate as one entity, their formal separate corporate structures will not prevent the assertion of jurisdiction over the non-resident corporation. The extent of control exercised by the non-resident corporation over the corporation doing business in this state determines whether the non-resident corporation is subject to this state's jurisdiction." Syl. pt. 2, Norfolk Southern Ry. Co. v. Maynard, 190 W.Va. 113, 437 S.E.2d 277 (1993).

6. " ' "The standard of jurisdictional due process is that a foreign corporation must have such minimum contacts with the state of the forum that the maintenance of an action in the forum does not offend traditional notions of fair play and substantial justice." Syllabus Point 1,Hodge v. Sands Manufacturing Company, 151 W.Va. 133, 150 S.E.2d 793 (1966).' Syllabus Point 1, Hill by Hill v. Showa Denko, K.K., 188 W.Va. 654, 425 S.E.2d 609 (1992), cert. denied, U.S. , 113 S.Ct. 2338, 124 L.Ed.2d 249 (1993)." Syl. pt. 1, Norfolk Southern Ry. Co. v. Maynard, 190 W.Va. 113, 437 S.E.2d 277 (1993).

7. " 'A writ of prohibition will lie where the trial court does not have jurisdiction or, having jurisdiction, exceeds its legitimate powers.' Syllabus Point 3, State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978)." Syl. pt. 4, Pries v. Watt, 186 W.Va. 49, 410 S.E.2d 285 (1991).

Gerard R. Stowers, Geoffrey A. Haddad, Bowles Rice McDavid Graff & Love, David B. Frost, Joseph J. Starsick, Jr., Charleston, for Petitioners.

Marvin W. Masters, Anthony J. Majestro, Richard A. Monahan, Masters & Taylor, Charleston, for E. Keith Morgan, Michael T. Sword, Daniel P. O'Connor, Jean Sanson and Doris J. Graley.

Steven Hamula, Charleston, for Amicus Curiae Public Service Commission of West Virginia.

McHUGH, Justice:

Petitioners Bell Atlantic-West Virginia and Bell Atlantic Corporation invoke this Court's original jurisdiction pursuant to W.Va. Const. art. VIII, § 3 and W.Va.Code, 51-1-3 [1923] and request that a writ of prohibition be directed against the Honorable Lyne Ranson, Judge of the Circuit Court of Kanawha County. Petitioners had filed motions to dismiss plaintiffs' class action 1 complaint, which complaint alleges that petitioners violated the West Virginia Antitrust Act, W.Va.Code, 47-18-1, et seq., and the West Virginia Consumer Credit and Protection Act, W.Va.Code, 46A-6-101, et seq., and further alleges various common law claims, all rooted in the inside wire maintenance service plans offered to plaintiffs and others by a "negative option." Plaintiffs essentially allege that petitioners used false, misleading and deceptive sales tactics and made similar representations to its telephone customers with regard to the inside wire maintenance service plans.

Petitioner Bell Atlantic-West Virginia (hereinafter "BA-WV") filed a motion to dismiss pursuant to W.Va.R.Civ.P. 12(b)(1) on the ground that the West Virginia Public Service Commission ("PSC") rather than the circuit court has subject matter jurisdiction of this case. Petitioner Bell Atlantic Corporation (hereinafter "BAC") filed a motion to dismiss pursuant to W.Va.R.Civ.P. 12(b)(2), alleging that the circuit court does not have personal jurisdiction over it, a nonresident and foreign corporation. BAC also moved to dismiss under Rule 12(b)(6), on the ground that plaintiffs have failed to state a claim upon which relief can be granted. In separate orders entered July 30, 1996 (hereinafter referred to as "BA-WV order" and "BAC order"), the circuit court denied the petitioners' motions to dismiss. It is enforcement of these orders that petitioners seek to prohibit.


Prior to 1985, BA-WV, formerly the Chesapeake and Potomac Telephone Company of West Virginia ("C & P"), 2 maintained its customers "inside wiring," which term "generally refers to the telephone wires within a customer's home or place of business that are on the customer's side of the point of intersection between the telephone company's communications facilities and the customer's facilities." National Ass'n of Regulatory Utility Com'rs v. Federal Communications Com'n, 880 F.2d 422, 425 (D.C.Cir.1989). The cost of maintaining a customer's inside wiring was included in the customer's basic service rates. Under this system, "each customer pa[id] a portion of the costs for [C & P's] inside wire maintenance work even if that customer perform[ed] the work himself or use[d] someone other than [C & P]." AT & T Communications of W.Va. v. C & P Telephone Co. of W.Va., 73 ARPSCWV 702, 771 (Case No. 84-244-T-C) (September 6, 1985).

In 1985, the PSC authorized the optional wire maintenance plan proposed by C & P, under which the charges for inside wire maintenance were "unbundled," that is, no longer included in the basic service rates charged C & P telephone customers. See generally Id. Instead, customers could subscribe to the plan for a monthly charge. Id. In exchange for this monthly charge, C & P would maintain the inside wire at no extra charge. Id. This plan was designed "so that the [monthly] option will apply automatically to any customer unless that customer affirmatively acts to 'opt out' of the plan." Id. at 772. 3 Customers could choose to maintain the inside wire themselves or to retain another vendor to perform the maintenance, thereby "opting out" of the plan. Id. Though these customers could engage C & P to maintain or repair their inside wire, the cost of such maintenance or repair could be considerable.

Subsequently, in 1986, C & P filed with the PSC a petition for consent to detariff rates and regulations governing the provision of inside wiring services. The C & P Telephone Co. of W.Va., a corporation. Petition for consent to detariff rates and regulations governing the provision of inside wiring service, 73 ARPSCWV 3148 (June 3, 1986). The detariffing proposed by C & P's petition constituted a partial detariff and was not full deregulation. See Id. at 3149. The PSC approved C & P's petition, indicating, inter alia, that "C & P will hereinafter furnish inside wiring services at such prices and upon such terms as it shall from time-to-time determine[.]" Id. The PSC further required C & P to refile the revised tariff pages, id. at 3150, which it did on or about July 8, 1986. The PSC further stated that "in approving C & P's petition, [the PSC] retains the right to reimpose the more traditional forms of regulation on C & P's provision of inside wiring services until the same is preempted by either [the Federal Communications Commission] order or further order of [the PSC]." Id. at 3149-50. 4

BA-WV filed additional tariffs resolving issues regarding inside wire and power companies, effective September 16, 1987. See finding of fact...

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