Zachs v. Public Utilities Commission

• Decision Date: 10 August 1976
• Citation: 171 Conn. 387,370 A.2d 984
• Court: Connecticut Supreme Court
• Parties: Henry M. ZACHS v. PUBLIC UTILITIES COMMISSION et al.

Page 984

370 A.2d 984

171 Conn. 387

Henry M. ZACHS v. PUBLIC UTILITIES COMMISSION et al.

Supreme Court of Connecticut.

Aug. 10, 1976.

Joseph S. Rachlin, Hartford, with whom was Joseph S. Sudarsky, Hartford, for appellant (plaintiff).

Marshall R. Collins, Hartford, Asst. Atty. Gen., with whom, on the brief, was Carl R. Ajello, Atty. Gen., for appellee (named defendant).

William J. O'Keefe, New Haven, with whom, on the brief, were Lewis H. Ulman and James R. Greenfield, New Haven, for appellee (defendant Southern New England Telephone Co.).

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

MacDONALD, Senior Judge.

This is an appeal by the plaintiff, Henry M. Zachs, from a judgment rendered by the Court of Common Pleas dismissing his appeal from an order of the defendant public utilities commission which approved an application by the defendant Southern New England Telephone Company for a higher rate schedule. Dismissal of the appeal followed the sustaining by the Court of Pleas in abatement filed by the defendants on the ground that a prior action was pending. No finding was requested or draft finding filed, but the facts necessary for a consideration of the issues raised are uncontroverted as summarized in the briefs.

By letter and application dated January 13, 1975, Southern New England Telephone Company, hereinafter referred to as SNETCO, requested authority of the public utilities commission (now reconstituted as the public utilities control authority-see 1975 Public Acts, No. 75-486), hereinafter referred to as the commission, to increase its rates and charges for telephone service. The commission gave this application docket number 11671 and thereafter conducted thereon twenty-two days of hearings between March 31, 1975, and May 14, 1975, having previously granted intervenor status and leave to appeal, pursuant to §§ 16-1-19 and 16-1-21 of the Regulations of Connecticut State Agencies, to the plaintiff, Zachs, a competitor of SNETCO in the field of furnishing to the general public mobile telephone service in automobiles and a radio paging service. On June 12, 1975, the commission filed its decision in docket number 11671 denying SNETCO's proposed amended schedule of rates and directing it to file an amended schedule in conformance with the decision and designed to produce additional revenue of approximately $48,829,000. This decision of June 12, 1975, did not find necessary or justified any increase in SNETCO's mobile telephone or radio paging rates.

On June 24, 1975, SNETCO filed an amended rate schedule in conformity with the order contained in the docket number 11671 decision of June 12, 1975, and thereafter, on June 30, 1975, the commission issued its supplemental decision under the same docket number, approving SNETCO's amended rate schedule, as filed, and authorizing application of such schedule on and after July 5, 1975. By writ, summons and complaint dated June 30, 1975, the plaintiff appealed the commission's original docket number 11671 decision to the Court of Common Pleas. In that appeal, which was given court docket number 118515, both SNETCO and the commission filed pleas in abatement alleging that the commission had not been summoned and that thirty-nine other intervenors, who had been given the same status as the plaintiff, had not been made parties and summoned to appear. These pleas in abatement were overruled by the court on September 29, 1975.

In the meantime, on July 30, 1975, by writ, summons and complaint dated July 29, 1975, the plaintiff filed a second appeal to the Court of Common Pleas which he described as being 'an appeal from the supplemental decision of the PUC dated June 30, 1975,' and in which he directed the serving officer to summon the commission and the other thirty-nine intervenors in the proceedings designated as commission docket number 11671. In this appeal, which was given court docket number 119947, both SNETCO and the commission filed pleas in abatement alleging that the appeal should be abated because a prior action was pending before the court which involved virtually identical parties, allegations of aggrievement and prayers for relief. The two pleas in abatement were sustained on October 7, 1975, and it is from the judgment rendered thereon dismissing the second appeal, filed July 30, 1975, that the plaintiff has appealed to this court.

Since no finding was made by the court, our inquiry is limited to the material facts which appear on the record. 'The court made no finding, although, ordinarily, one is essential to test the conclusion reached. Practice Book § 609 (now § 612B) . . .. The plaintiff did not file either a request for a finding or a draft finding. Consequently, no finding was made. The absence of a finding does not necessarily preclude action by this court. We are, however, limited in our inquiry to the material facts which appear on the record.' Robertson v. Robertson, 164 Conn. 140, 142, 318 A.2d 106, 107. The record here consists only of the pleadings, one exhibit, the judgment and a memorandum of decision sustaining the defendants' pleas in abatement. The court's memorandum 'does not establish facts and cannot take the place of a finding. . . . We may, however, consult the memorandum for a better understanding of the basis of the court's decision.' Davenport Taxi, Inc. v. State Labor Commissioner, 164 Conn. 233, 235, 319 A.2d 386, 387. The basis for its decision, as briefly stated in the trial court's memorandum, is simply that '(t)he two appeals in the allegations of aggrievement as contained within the appellant's two complaints are identical and therefore this action must be abated for lack of jurisdiction.'

The record discloses that one fact was admitted in the pleadings, namely, the statement in SNETCO's plea in abatement that '(t)he plaintiff has already filed a similar appeal on June 30, 1975, in this Hartford Court of Common Pleas. See Docket #118515, returnable 3d Tuesday of July, 1975.' The plaintiff's answer specifically admits this statement. The fact that the judgment found the issues raised by the pleas in abatement for the defendants 'means that all material and disputed allegations in the pleadings were found for (them),' Tuite v. Tuite, 150 Conn. 345, 348, 189 A.2d 394, 396, including their allegations that '(a) prior action between the same parties, involving the same issues, is pending'; and that 'there is now a prior action pending, in this Court, between the same parties concerning the same subject matter.' Since the trial court, by its decision, found these facts for the defendants, our inquiry is limited to a determination of whether the trial court correctly applied the law relative to the pleas in abatement to the above found facts.

" The pendency of a prior suit of the same character, between the same parties, brought to...