50 A.2d 684 | Pa. | 1947
Argued January 6, 1947. The denial by the court below of jurisdiction over the subject-matter of this action springs from a not uncommon *638 confusion between the question of jurisdiction and that of the plaintiff's right to recover.
Plaintiff, The Bell Telephone Company of Pennsylvania, on June 19, 1942, entered into a written agreement with defendant, Philadelphia Warwick Company, which operates the Warwick Hotel in Philadelphia. The contract provided for the installation by plaintiff on defendant's premises of a semi-public branch exchange system consisting of a switchboard and other equipment, for the use and maintenance of which defendant was to pay a monthly charge. Defendant, acting as plaintiff's agent, was to collect for it the established public telephone rate of ten cents for each local message from the hotel premises and the established charges for toll messages, and was to receive from plaintiff a commission of 60% of the gross receipts from local messages and 20% from toll messages, not to exceed 25 cents on any one message. The contract was to continue in force from month to month until terminated by ten days' notice in writing from either party to the other. It was not filed with the Pennsylvania Public Utility Commission, but plaintiff had on file with the Commission the tariffs specifying local and toll message rates.
Defendant, in conformity with the practice of other hotels, made and collected surcharges from its guests for telephone service; such surcharges were not provided for in the tariffs filed by plaintiff, and the Pennsylvania Public Utility Commission notified plaintiff that surcharges billed by hotels on telephone calls placed by guests over semi-public branch exchanges constituted a violation of its tariffs, and directed it to institute the necessary measures to compel a discontinuance of such practice. Plaintiff informed defendant of this order of the Commission, but apparently to no avail in spite of the fact that the Federal Communications Commission also held that the practice of hotels in making and collecting surcharges not provided for in plaintiff's filed tariffs was improper as to interstate calls over semipublic branch exchanges. On February 12, 1944, plaintiff *639 gave defendant notice that their contract would be terminated at midnight February 23, 1944, notice on March 1, 1944, that plaintiff's filed tariffs provided for the collection of its established charges only and not for any surcharges by hotels, and notice on April 3, 1944, that plaintiff would, after April 15, 1944, make commission payments only to hotels which in writing had advised plaintiff of their compliance with the tariff provisions by discontinuing their practice of making surcharges. Defendant did not respond to these notices and, since February 23, 1944, no contract for the payment of commissions has been in force between the parties.
The present action is to recover the sum of $5,670.28, being an amount retained by defendant as commissions out of collections which it had made for toll messages from the telephone stations on its premises from April 15, 1944, to July 3, 1945. It is plaintiff's contention that during that period defendant was illegally collecting surcharges in addition to the rates in effect under the filed tariffs and that after the termination of the contract between the parties on February 24, 1944, defendant had no right to any commissions whatever.
After plaintiff filed its statement of claim defendant presented a petition under the Act of March 5, 1925, P. L. 23, challenging the jurisdiction of the court on the ground that the commissions properly payable to defendant and the contract between the parties in reference thereto entered into the question of rates,1 that the subject involved in the suit was therefore within the exclusive jurisdiction of the Pennsylvania Public Utility Commission, that plaintiff should have filed with the Commission its contract with defendant2 and subsequently *640 its cancellation of that contract,3 and that, until the Commission had determined the portion of the collections to which plaintiff was entitled as diminished by proper compensation for defendant's services as plaintiff's agent, no suit to recover such collections could be brought in the Court of Common Pleas. The court upheld this contention and made absolute defendant's rule to show cause why the action should not be dismissed for lack of jurisdiction. From this order plaintiff appeals.
The ruling of the court was erroneous. We are not concerned here with the merits of the controversy. Plaintiff argues that the right of defendant to commissions was at all times a matter solely of contract between the parties and did not involve any determination of rates by the Public Utility Commission, that it was suing only to recover the amount due it under the schedule of the filed rates which were legally binding unless and until set aside or modified by the Commission,4 that the Commission had power to prescribe rates prospectively only, not retroactively, and could not require it to file tariffs covering past periods,5 and that it was incumbent upon the defendant to turn the collections over to plaintiff and if subsequently the Commission took any action giving support to defendant's claim the latter's remedy would then be by way of reparation.6 *641 Assuming, however, though without deciding, that defendant is right in its contention that its contract with plaintiff should have been filed by the latter, that the rate of commissions to which it was entitled had never actually been established or approved by the Commission, that plaintiff's cancellation of the contract had never been so approved, and that plaintiff could not recover in this action until such approval had been obtained, nevertheless the jurisdiction of the court over the present cause of action would not be affected by these considerations or any of them.
In Lackawanna County v. James,
In Skelton v. Lower Merion Township,
In Nippon Ki-Ito Kaisha, Ltd. v. Ewing-Thomas Corporation,
In Main Cleaners Dyers, Inc. v. Columbia Super Cleaners,Inc.,
In Zerbe Township School District v. Thomas,
In Hellertown Borough Referendum Case,
In Squire v. Fridenberg,
In Matthews v. Plum Township and Plum Township SchoolDistrict,
These cases make it abundantly clear that where a plaintiff sues for moneys alleged to be due under a contract, or in trespass for damages, the court is not without jurisdiction over the subject-matter of the suit merely because the action of some other tribunal may be necessary to fix the amount due as a condition precedent to plaintiff's right of recovery. In the present case the only tribunal in which plaintiff can sue for the moneys it claims is the Court of Common Pleas; whatever the function of the Public Utility Commission to determine the reasonable and just amount of defendant's commissions that body cannot give relief to plaintiff by awarding him a judgment, followed, if necessary, by a writ of execution. The Public Utility Commission has no jurisdiction to entertain a proceeding by a public utility to recover its charges. If plaintiff is entitled to recovery in its present action it is for the Court of Common Pleas to say so; if it is not entitled it is likewise for that court so to declare. But, whether its ultimate conclusion in regard to that question be in favor of or against plaintiff, the Court of Common Pleas, and it alone, has jurisdiction over the cause of action here asserted.
Cases of the type relied upon by defendant7 are all *645 without point so far as the present question is concerned. They are cases in which the plaintiffs8 were complaining of rates or regulations which were under the control of the Public Utility Commission and the redress they sought could be granted only by that body. In the present instance it is not plaintiff which is complaining of any rates or regulations; it is merely suing to recover moneys alleged to be due it and in the hands of defendant; it is defendant which is asserting that the rates as filed are not just or reasonable and that the Public Utility Commission should therefore be called upon to adjust and modify them. The Pennsylvania Hotels Association, of which defendant is a member, has made the same complaint to the Commission, in proceedings still pending, which defendant makes in the present action, and has prayed the Commission to determine the reasonable and proper rates, regulations and practices affecting the compensation for hotel telephone service for the period here in question and also for an order compelling plaintiff to adopt and recognize as a part of its tariffs for that period the same "division of the message rate for hotel service" which was in effect prior to April 15, 1944. It may be that the consideration of this complaint by the Commission will result in providing defendant with a defense in whole or in part to the present action and in a consequent total or partial defeat of plaintiff's claim, or its decision may form the basis of a claim for refund, but in no event can it impair or in any manner affect the question of the jurisdiction of the court over the present action.
The order is reversed with a procedendo.