MCI Telecommunications Corp. v. Teleconcepts, Inc.

quantity mum of evidence needed to avoid

judgment as a matter of law. Ezold,

As we commented Title VII employers require

“does not to treat all em

ployees fairly protection ... the law limits its

against that unfairness to cases of invidious Ezold,

illegal discrimination.” 983 F.2d at

542. And “unfortunate and con destructive personalities

flict of does not ... establish Westinghouse

discrimination.” Bellissimo v. (3d Cir.1985). Corp.,

Elec.

“Title VII eliminates certain bases for distin

guishing among employees while otherwise

preserving employers’ freedom of choice.” Hopkins,

Price Waterhouse v. 490 U.S.

239, 109 1775, 1784-85, 104 S.Ct. L.Ed.2d 268 plaintiff

Because the failed to establish his discrimination, illegal

claim judgment

of the district court will be affirmed.

MCI TELECOMMUNICATIONS

CORPORATION

v.

TELECONCEPTS, INCORPORATED,

Defendant/Third-Party Plaintiff-

Appellant, PENNSYLVANIA,

BELL OF Third-

Party Defendant-Appellee,

Teleconcepts, Incorporated, Appellant.

No. 94-5426.

United of Appeals, States Court

Third Circuit.

Argued March 1995.

Decided Dec. Casale, Trenton, (argued),

Charles J. Jr. Jersey, New for Party Defendant/Third Plaintiff-Appellant Teleconeepts, Inc. Duane, (argued), Kenneth M. Denti Morris Heekscher, Marlton, & Jersey, New Plaintiff-Appellee MCI Telecommunications Corp. Marks, O’Neill, (argued),

Lisa M. Bellino O’Brien, P.C., Reilly PA, Philadelphia, & Third-Party Defendant-Appellee Bell of Pennsylvania. GREENBERG,

Before: NYGAARD and MeKEE, Judges. Circuit THE OPINION OF COURT McKEE, Judge. Circuit (“MCI”), MCI long Telecommunications a distance provid- telecommunications service er, has Teleconeepts sued to recover the cost provided services MCI under MCI’s Fed- eral Communications Commission tariff (“FCC tariff’). Teleconeepts raised the un- timely complaint service of the and the stat- defenses, ute of limitations as and also brought third-party against Bell of (“Bell”), Pennsylvania Teleconeepts’ local telephone exchange carrier. Bell disclaimed liability Pennsylvania under the terms of its (“PUC Utility Public Commission Tariff Tar- iff’). The district court held that the action was not “good time-barred and that cause” existed for the late service of complaint. granted summary The court also judgment to both holding MCI and Bell that the FCC and placed PUC tariffs both responsibility for telephone unauthorized calls on Teleconeepts. Because we find that MCI’s action was partially limitations, barred the statute of and that the primary jurisdiction doctrine of required the district court to transfer third-party complaint Pennsylvania to the Commission, Utility Public we will reverse part and remand for proceedings. further I. FACTUAL BACKGROUND Teleconeepts operated owns coin tele- phones commonly referred “pay as — phones” places premises on the —that supplied various businesses. long MCI dis- Teleeoncepts provided MCI had from services Teleeoncepts telephone tance $47,565.84. through March under the through March January 1988 1990— had the tariff MCI conditions terms Teleeoncepts came to believe Eventually, Com- Communications with Federal filed re- had questioned telephone calls that the phones are pay Teleeoncepts’ When mission. process known from a fraudulent sulted to Bell of a cost used, Teleeoncepts incurs person “hacking.”1 This occurred when telephone of Bell’s the use Pennsylvania for pay phone and on a an 800 number called charges the line monthly for bill lines. receiving party until silent remained long distance customer’s includes the also then dial tone would be hung up. A second Teleeon- month. preceding charges for the call then 800 caller who could given to the MCI 1989 bills from cepts’ November placing without anywhere he or she desired ser- long included distance long distance calls telephone. in the any coins additional telephone calls charges for international vice $7,000. Teleeoncepts was billed in excess initial January MCI filed its On numbers, which account six different under to collect complaint in an effort summons Teleeon- different represent six presumably Teleeoncepts. MCI charges from unpaid charges The November phones. cepts’ pay through the Coun- Mercer attempted service charges long distance prior months’ exceeded initial at- but its Department, ty Sheriffs was cer- Teleeoncepts an extent to such eventu- Service was tempt was unsuccessful. occurred, and so billing had error tain Teleeoncepts ally made on June However, Bell since Bell. informed complaint third-party by filing a responded billing long distance merely a conduit it al- Pennsylvania which Bell of against Teleeoncepts telling responded charges, it the defect responsible for leged that Bell was carrier —MCI. long distance its to contact illegal “hack- allowed the dial tone that informed MCI and Teleeoncepts contacted indemnify therefore ing” and that Bell should to the long calls distance numerous it of the liability may have to any it Teleeoncepts for that Rico and Puerto Republic Dominican to eventually moved Teleeoncepts MCI.2 made had not been Teleeoncepts believed had complaint MCI because dismiss requested a cred- any phones of its from process within failed to effect refused, Teleeoncepts told MCI When it. required complaint filing of days of long pay for these it that would MCI 4(j). In an Rule of Civil Procedure Federal pro- continued charges, but MCI distance 1992, 15, the district September dated order When Teleeon- long service. distance vide to dismiss Teleeoncepts’ motion denied court bills it discover- December received its cepts finding “good cause” complaint MCI’s Puerto $13,000 charges to doubtful in over ed service. late excused Republic. Teleeon- and the Dominican Rico charges. pay these again refused cepts cross-mo- parties filed Subsequently, Teleeoncepts judgment. summary for tions 27, 1989, Tele- notified MCI December On untimely since that MCI’s claimed service was long distance concepts that its year statute the two was not filed within reason, However, MCI for some terminated. in the Communications contained limitations until long distance service to terminate failed cause MCI’s argued that Teleeoncepts Act. interim, Tele- In the following March. it refused either when action accrued containing bills to receive concepts continued latest, bills, or at the the November pay Tele- charges, and long distance exorbitant 1989, gave no- 27, MCI when December Finally, pay. to refuse concepts continued services long Teleeoncepts’ distance tice Teleeoncepts to recover sued MCI by argu- countered MCI terminated. long charges for distance were unpaid amount pay happened to his what Teleeoncepts deduced that this first exactly when is unclear 1. It "hacking" phones. vic- have been that it learned court, filed in district In an affidavit tim. Goida, Teleeoncepts, states he president of John dial tone in the appears the defect It 2. "hacking" generally of the fraudulent learned been remedied. since phone during conversation unrelated process division, and he employee fraud in Bell's with an timely ing that its action was because party defendant, Tele- third Pennsylvania Bell of concepts’ services continued until March 28,1993 and December plaintiff, favor of 27, despite the December 1989 disconnect Telecommunications, MCI Inc. argued notice. MCI further that under a 30 App. at 1. day payment provision tariff, of its federal Federal Appellate Rule Procedure payment

final of the bills would not become 3(c) provides, pertinent part, that a notice 1990, April 27, until January due either appeal designate “must judgment, or 1990, at accepting the earliest even Telecon- part der or appealed thereof from....” Thus, cepts’ position. oper- MCI claimed the 3(c). Fed.R.App.P. party aIf does not satis commencing ative date for an action was fy requirements of Federal Ap Rule of 1992, April either March or or at the pellate 3(c), Procedure appellate then the earliest, 27, January 1992. acquire jurisdiction does not over the Teleconeepts’ The district court denied mo- undesignated issues. United States v. Riv summary judgment tion for in a memoran- (3d era Constr. 863 F.2d Cir. opinion dum and order dated December 1988). though Even appeal the notice of Additionally, 1993. the court held that does not September mention the placed responsibility MCI’s federal tariff (denying order Teleconeepts’ motion to dis Teleconeepts, thus, unauthorized calls on miss) or February granted MCI’s cross-motion for summary 1994 memorandum and order (calculating judgment. granted The court also MCI’s MCI’s fees), award of attorney’s reasonable request and, attorney’s in separate fees Teleconeepts challenges both of these deci opinion memorandum and order dated Feb- sions in its brief to this court. argues MCI ruary 1994, determined the reasonable that we acquire jurisdiction did not over $11,812.50. amount of such fees to be these issues since these orders are neither court also held that placed PUC tariff directly indirectly nor referred to the no responsibility for unauthorized pay- calls on appeal. tice of Appellee’s brief at 6. phone owners, granted therefore sum- mary judgment in favor of against Bell and jurisprudence “Our liberally con Teleconeepts in a memorandum and order strues notices of appeals.” Drinkwater v. entered on June Union Corp., (3d Carbide Cir.1990). Thus, we have held that it is appeal, Teleconeepts On challenges the dis- proper to jurisdiction exercise appellate over trict court’s denial motion of its to dismiss for specified orders not in the appeal notice of if failure timely complaint, to serve the the “ ‘there is a specified connection between the denial of summary judgment its for motion order, unspecified and appeal the intention to on defense, the statute of limitations unspecified apparent order is and the grant summary of judgment Bell, in favor of opposing party prejudiced is not and has a and the attorney’s amount of the fee award. ” full opportunity to brief the issues.’ Lusar di Corp., (3d v. 964, Xerox 975 F.2d 972 II. DISCUSSION Cir.1992) (quoting Guzzardi, Williams v. 875 Appellate A. Jurisdiction (3d 46, Cir.1989)). F.2d 49 These factors are present here. must first determine We whether we “ jurisdiction have to review the issues raised repeatedly We have held that ‘since ... by Teleconeepts appeal. on The notice of only judgment a final appealable, order is appeal reads as follows: appeal judgment of a final draws into Teleconeepts, Inc., defendant-third party question prior all non-final orders and rul- ” plaintiff appeals to the ings.’ United Drinkwater, States 904 (quot- F.2d at 858 Appeals Court of for the Third ing Motors, Circuit Chrysler Inc. v. Corp., Elfman from an summary order judgment 1252, dis- (3d Cir.1977)). 567 F.2d 1253 Telecon- posing the remaining claims of the cepts District could not appeal September 15, Court for the District of Jersey New en- 1992 denying order its motion to dismiss 20,1994, tered in this case June in favor complaint of MCI’s until the district court filed

1093 phone provided under 28, summary service MCI the terms 1993 order of the December Moreover, in and conditions set forth in MCI’s Tariff. of MCI. FCC judgment favor issues, remaining alleges required the De- it is col- MCI since disposing of the 28, specified opinion charges refers memorandum lect the services 1998 cember 15, § September 1992 tariff 203 under Communications the district court’s 1934, (1982), Teleconcepts’ subject § to dis- Act of denying motion 47 U.S.C. 203 order Thus, pres- requisite connection exists under 28 U.S.C. miss. 1337, §§ 1331 and and the Communications ent. (1982).3 seq. § Act of 47 U.S.C. et appeal the notice of Similarly, while While this circuit never addressed February 1994 not refer does unpaid charges whether the collection of calculating and order MCI’s memorandum long telephone distance an fees, under attorney’s an ade award reasonable (28 FCC tariff “arises under” federal law specified exists between quate connection 1331) § Congress regulat U.S.C. or an act of prevailing party designates the order that (28 1337) ing majori § commerce U.S.C. unspeci attorney’s fees an purposes ty appeals have addressed courts attorney’s fee quantifies order that fied this issue have answered the affirmative. Educ. v. See Bernardsville Bd. award. Dev., (3d Cir.1994). See Western Union Inc. Data J.H., F.3d 156 n. 10 Int'l (11th Inc., Cir.1995); MCI Tele 28,1993 specifical the December order Since Graham, Corp. v. communications 7 F.3d attorney’s request for fees ly granted MCI’s (6th Cir.1993); MCI Telecommunica merely MCI file an affidavit directed Corp. Corp., tions v. Garden State Inv. fees, attorney’s there is an of reasonable (8th Cir.1992); Ivy Broadcasting F.2d 385 two or adequate between these connection Co., Co., Inc. v. Am. Tel. & Tel. 391 F.2d 486 ders. (2d Cir.1968). But see Telecommunica MCI Moreover, prejudiced not had MCI is Am., Inc., Corp. tions v. Credit Builders of issues, disputed opportunity to brief — (5th Cir.1993), vacated, 980 F.2d n. id. has done so. See U.S. -, 2925, 124 L.Ed.2d jurisdic- Accordingly, we hold we (1993), reinstated, 2 prior opinion F.3d 103 September review 1992 order tion to — (5th denied, Cir.), -, cert. U.S. Teleconcepts’ denying motion to dismiss and 472, 126 L.Ed.2d 424 S.Ct. February 1994 memorandum or- attorney’s Records, award of fees. calculating an In Bros. Inc. v. U.S. der Rickman Sprint Communications Subject B. Matter Jurisdiction (3d Cir.1991), we held that the district Sprint’s over had addressing Before the substantive pursuant to under a filed with the FCC tariff Teleconcepts must raised we deter issues 1337(a). However, we did U.S.C. mine if the district court had jurisdiction di- question because there was against jurisdiction MCI’s action Tele- over versity citizenship have and we would thus of place. neither concepts in first While jurisdiction question juris- even if had federal Teleconcepts court nor ever raised district subsequent id. See Given diction failed. obligation do so we have an sua this issue and lack of of our sister circuits decisions Co., Boeing Vertol 620 sponte. Medlin here, analy- diversity we undertake this now (3d Cir.1980); Carlsberg Re F.2d sis. Loan Ass’n, Corp. v. Cambria Sav. & sources (3d Cir.1977). F.2d appeals that of that have held Those courts subject upon Teleconcepts’ under action based exists

MCI’s 1337(a), a §§ reason that pay long U.S.C. MCI distance tele- failure and/or original jurisdiction any civil provides "the courts have of § 28 U.S.C. district shall 3. arising any proceeding under Act of original jurisdiction all shall of civil or courts Constitution, laws, protecting Congress regulating or commerce arising actions under against monopo- and trade and restraints of United States.” U.S.C. treaties 1337(a) provides, part, lies. § "[t]he ...” unpaid long charges claim distance required the United States by 28 U.S.C. Congress an act of regulating § “arises under” (the Act) Communications commerce because § The word ‘laws’ in 1331 should be con- the claim relies on tariffs that must be filed strued to include laws by created federal Union, See Western with the FCC.4 judicial decision congressional as well as Graham, 1496; 479; 7 F.3d at Garden legislation. The rationale of the 1875 Inv., 388; Ivy 981 F.2d at State Broadcast- grant question federal —to ing, appellate 493-494. lone availability insure the designed of a forum court to hold otherwise reasons that the fed- danger toward, to minimize the hostility appropriate only eral common law is a specially of, suited to the vindication “few and restricted” circumstances federally rights applicable created as—is delinquent phone doubts that collection of a judicially rights rights created as to

bill falls within these limited circumstances. created statute. Builders, See Credit 980 F.2d at 1022-23. Id. at 492. specific This issue first addressed in The court also held that § 28 U.S.C. Ivy Broadcasting Tel., Inc. v. Am. Tel. & provided jurisdiction over the counterclaims. There, supra. the district sponte court sua The Communications Act of 1934 is an ‘Act against dismissed a suit A.T. T.& that arose Congress regulating commerce’ within problems from during that had occurred meaning of [§ 1337.] Since we con- transmission over A.T. telephone & T.’s clude that the counterclaims arise under wires. The court reasoned that claims for they Communications Act insofar as negligence and breach contract did not rely upon tariffs which requires the Act arise out of the Communications Act but FCC, be filed with the we hold that law, were founded on and contract tort gives [§ 1337] jurisdic- the district court merely that the counterclaim was an action tion over so much the counterclaims as for services rendered also lacked a fed- upon relies such tariffs. jurisdictional eral appeal basis. On the Unit- (footnote omitted) (citations Id. at 494 omit- Appeals ed States Court for the Second ted). analysis The court’s heavily relied complaint Circuit noted that since the did not upon analogous inquiry of Supreme allege specific violation of the Communica- Court under the Commerce Act in Louisville Act, tions 207 did U.S.C. not confer Rice, & N.R. v. 247 U.S. jurisdiction. Nevertheless, the court rea- 429, 429, 62 L.Ed. 1071 soned that the scheme of regu- broad federal Several other employed courts have lation of communications carriers indicated a reasoning Ivy Broadcasting to hold that congressional occupy intent to the field to the federal district courts have Ivy exclusion of state law. See Broadcast- jurisdiction over unpaid charges actions for ing, 391 F.2d at 490. provided for services under an FCC tariff. It to us congressional seems that the pur- In MCI Corp. Telecommunications v. Gar- pose only can be achieved if a uniform den State Corp, supra, Inv. MCI sued to governs federal law as to the standards of unpaid recover charges, telecommunications service which the provide carrier must and the district court dismissed the com- as to the liability extent of for failure to plaint sponte sua complaint because the did comply with such standards. not allege specific violation of the Commu- Id. at 491. nications Act. The court reasoned that there The court concluded that since federal was law no need for uniform federal common law controlled, the suit “arose under” the laws governing of unpaid claims collect to telecom- Although 4. some courts that have quirement addressed this of interpreted 1337 has section been upon § issue have relied 1331 and others have to be the same found in 28 U.S.C. upon § relied there is no difference in 1331....”); § v. Yancoskie Delaware River Port these two bases of for Authority, (3d Cir.1975) 528 F.2d 725 purposes Medlin, present analysis. of our See (same). ("The 620 F.2d at ‘arising 962-963 under' re- § 1331 and U.S.C. under U.S.C. existed there charges, and service munication 1337). § of exercise for the no basis therefore jurisdiction. subject matter Corp. v. Only MCI Telecommunications Appeals for of Am., Inc., Court supra, States reached The United Builders Credit heavily upon Su relied Eighth There, Circuit supplier of tele- a contrary result. a jur federal involving decisions preme Court the dis- appealed services communications to reverse. Act the Commerce under isdiction to col- that a suit determination court’s trict (i.e. Lines, K. Inc. v. Jordan Motor charges Thurston telecommunications unpaid lect Ltd., Rand, S.Ct. 460 U.S. appeal, the jurisdictional basis. On a lacked curiam)).5 (1983) Gar (per L.Ed.2d court had argued that the district plaintiff Inv., The 981 F.2d 387-88. den State jurisdiction un- question independent federal that: reasoned court over § 28 U.S.C. der that a recognize arising failed to out of the Communications the district court matters right a law when federal 1337. arises under under 28 claim U.S.C. Act ele- an essential law is by federal created for Appeals Court of United The States The plaintiff’s action. ment of by noting analysis began its Fifth Circuit brought under an claim MCI’s court stated that: simply a contract ‘is FCC tariff a case stated that Supreme has Court for services payment seeking to recover really and if ‘it under federal law arises character- district court’s rendered.’ contro- dispute or substantially involves the fact claim overlooks ization of MCI’s construction, validity, versy respecting the law, not mere are tariffs that federal law, determi- upon of such a or effect user’s refusal Although a contracts. depends.’ the result nation of which often by a will fixed tariff charges pay (citations Builders, at 1022 Credit contract, a broken in the context arise omitted). is necessar- payment claim for the carrier’s tariff. the filed ily based the rea- persuaded by The court was Instead, Broadcasting. omitted). soning Ivy (citations Id. at 387 reasoned that: circumstances, the United analogous In emphasized, Supreme Court [a]s the Sixth Circuit Appeals for Court States appropriate law is common the federal sponte dis- sua the district reversed circumstances. only a ‘few restricted’ jurisdiction in MCI of federal for lack missal Illinois, 451 U.S. Graham, Milwaukee su- Corp. v. Telecommunications 1784, 1790, L.Ed.2d ability to that MCI’s court held pra. The Industries, Inc. v. Rad tariff, In Texas upon its FCC was based sue 641, 101 Materials, Inc., 451 U.S. law. See in federal was rooted therefore cliff (1981),the 2061, 2067, 68 L.Ed.2d Ivy Broad- S.Ct. Graham, at 479-80. As in 7 F.3d that ‘ab went on state Supreme Court by similari- persuaded casting, the court was authorization congressional some sent Act and Communications ties between the decision, rules formulate substantive guided Thur- and was Act the Commerce only in such law exists common federal ston, analysis the United Rice and with those concerned narrow areas as Cir- Appeals the Second States Court States, obligations of the United rights and Broadcasting. would be “[I]t Ivy cuit impli disputes and international jurisdic- interstate a different incongruous impose rights of conflicting States cating the Act the Communications tional rule under nations, ad foreign with our relations Id. at 480. Act.” Commerce than under the that this not believe miralty do cases.’ We Union, at 1496-97 See also Western telephone bill delinquent case to collect a claim jurisdiction over (subject matter instances. limited within these charges falls unpaid telecommunications Garden action." “simple collection Thurston, contract Cir- rejected Ninth Court In Thurston, Investment, (citing supra, at 387 argument carrier's State Appeals’ Court of cuit 1343). 533, at S.Ct. at 460 U.S. transportation services was payment of action for 25, The court ary Id. 1022-23. that for held these requested 1992. MCI an alias sum- reasons 1337 did not 12, same confer federal 1992, mons on or about March after it question jurisdiction, and plaintiffs ac- discovered another address for The service. quantum tion breach of contract or meru- alias summons was returned on an “unknown a creature of state law. date” and forwarded for service on or about May 29, process 1992. Service of was even- by persuaded analysis are not We tually achieved this alternate address on Builders. MCI’s Credit based June well over a month after the from, upon, and draws its life the tariff that days prescribed 4(j) lapsed. Rule had MCI filed with the Federal Communications MCI never request made a for an extension reasoning Ivy Commission. The Broad- of time. casting, analogous and the cases un- decided Act, der the Commerce see Thurston and The district “good court found that Rice, supra, persuade us that the district service, cause” excused the late and denied court did have Teleconcepts’ motion to dismiss the com action, over MCI’s and Teleconcepts’ coun- plaint. Our review of the district court’s However, jurisdic- terclaim. there are other finding “good cause” is for an abuse of problems tional with that counterclaim which Markets, discretion. See Lovelace v. Acme we discuss more detail below. Inc., (3d Cir.), denied, 820 F.2d cert. 484 U.S. 98 L.Ed.2d 395 Complaint Late C. Service of the (1987); States, Braxton v. United 817 F.2d the district When court denied Telecon- (3d Cir.1987). cepts’ motion to timely dismiss for failure to The district court did not articulate the complaint, serve the Federal Rule of Civil factor(s) it believed “good constituted cause.” 4(j) pertinent Procedure read in part: initially orally The court Teleconcepts’ denied Time Summons: Limit for Service. If a motion during to dismiss following ex- complaint the summons and change telephone in a conference: upon not made a defendant within 120 THE filing right. Now, COURT: All days complaint after the of the the defen- dant party complaint moved to dismiss the pur- on whose behalf such service was 4(j), suant to required provides Rule good cannot show which why for dis- cause such good missal service was not unless period, made cause be shown. I within would like the action shall to hear be from the dismissed as to that defendant be- fore I prejudice rule. without upon defendant own initiative with notice to such Honor, MR. REILLY: Your I after re- party upon motion. ceived response from the plaintiff re- 4(j).6 garding my Fed.R.Civ.P. client’s address as 51 Everett Princeton, Street he me that informed district court required The was thus that’s been his address. I understand that process MCI’s action if dismiss was not he not have been there at the time days within 120 filing served when the initially Sheriff went out. The complaint unless good MCI could show cause problem I have with argument is that delinquency. See Petrucelli v. Boh they did serve him eventually at another— ringer (3d Ratzinger, & at his residence. Cir.1995). THE COURT: Yes. MCI filed its initial summons and com- plaint 15,1992. January papers were MR. REILLY: And that was some four returned unserved County Mercer after months the initial issuance of Department Sheriffs marked “unable to lo- complaint, summons and which I still feel cate, given” at address unknown on Febru- is an inordinate amount of time— 1, 1993, 4(j) As of December Rule significance was amend- of this amendment infra. 4(m). redesignated ed and Rule We discuss the only one reference to uncovered record has Well, preju- I’ve seen no COURT: THE may have the court “good not cause” which cause the remedy good if were dice. in preju- In brief supported late service. MCI’s without felt be dismissal would shown circum- to Teleconcepts’ the motion dismiss opposition Under to re-service. and dice certainly good cause stances, find I MCI states: de- is denied. The Motion shown.

been because service could good is shown cause answer, or otherwise move will fendant given as the at the address not be made plead. process of at registered address for service complaint court memorial- filed. It was district the was Subsequently, the the time of attempts the written order necessary in to make additional this decision ized order, court 15,1992. the In that and by locating another address September service had been “good cause” merely that alias summons. requesting an stated motion to dismiss that the and shown App. at 35. rec- forth on the set for the reasons denied speculate to and if we were Even ord. for the dis that this was the basis conclude court felt Although the district cause,” finding “good we of trict court’s by the prejudiced Teleconcepts had not been it was an abuse to conclude that would have can service, prejudice of alone absence late was returned The summons of discretion. late to excuse good cause constitute never February 1992. MCI on unserved Nuttall, 122 United States See service. address Teleconcepts’ alternative learned of (courts (D.Del.1988) have 163, 166-67 F.R.D. 12,1992, requested an early March as as determining in three factors considered that same date. on or about alias summons (1) reasonableness good of cause: existence not forward Inexplicably, the summons was (2) prejudice efforts serve plaintiffs 29,1992, May until on or about for service ed timely by lack defendant until address not served at this alternate enlarge (3) moved for an plaintiff whether limit beyond the time well June serve). equated We of time to ment by 4(j). never moved Rule MCI prescribed concept “excusable “good cause” with the of time. for an extension Rule of Civil Procedure neglect” of Federal why it Nothing explains record on this 6(b)(2), requires “a demonstration which after it learned three months took MCI over seeking an part party of the on the faith good to serve Teleconcepts’ address alternate basis and some reasonable enlargement Moreover, does not Teleconcepts. record in specified the time noncompliance within filed a motion MCI never explain why Petrucelli, at 1312 See rules.” Lovelace, 820 See enlarge time to serve. dissenting (Becker, J., concurring part in (alternative service and means of at 85 may tip Thus, prejudice part).7 while in a lack time indicate ability to extend scale, primary focus cause” “good finding of against a weigh diligence and complying reasons for plaintiffs cause). with no presented we are good Since place. Such limit in the first the time with what, any, if circumstances as to explanations conspicuously absent are “justifications” “good to excuse cause” constitute sufficient sub decision and its oral hold diligence, we lack of apparent MCI’s Moreover, the briefs sequent written order. discretion court abused its the district and the on this issue court are this silent to excuse the good cause existed finding that not assisted divin have therefore parties Braxton, F.2d at late service. the district “good ing the cause” an there is not exist (good does when addition, cause our review entire In found. request made enlarged period if therefor 6(b) part: pertinent provides in Fed.R.Civ.P. originally period expiration of the before the by rules or Enlargement. these When order, by previous prescribed or extended of court given or order thereunder notice expiration (2) after upon motion made or at or required to be done allowed time, act is be period permit the act to specified specified the court for cause within a the result (1) to act was the failure done where any time in its discretion shown neglect.... excusable or notice order without with or motion delinquency “unexplained part upon 4(m) on the of the ceed remand under Rule even lack of process oversight server and coun- though we have “good determined that no sel”). 4(j). cause” was shown under Rule finding of a district court’s Reversal that a change [A]s result of the rule which led to good 4(m), existed excuse late cause service to Rule entertaining when a motion action, of an results in the dismissal but such service, to extend time for the district prejudice plaintiff. to is without dismissal proceed court following must in the man- Accordingly, party can refile the com- First, ner. the district court should deter- day period a new plaint and receive to good mine whether cause exists for an Petrucelli, process. See serve good extension of time. If pres- cause is 1304 n. 6. ent, the district court must extend time If, service and inquiry is ended. how- However, 1,1993, 4(j) as December Rule ever, good exist, cause does not the court 4(m). redesignated was amended and Rule may in its discretion decide whether to 4(m) provides, part, Rule that: dismiss prejudice the ease without or ex- complaint If of the summons and service is tend time for service. upon a not made defendant within 120 filing days complaint, after the of the Moreover, Id. at 1305. expiration motion, court, upon or on its own initiative statute of prohibit limitations does not plaintiff, after notice to shall dismiss extending court from the time for prejudice the action without as to that service. See id. at 1305-06. defendant or direct that service be effectu- parties apparently here do not consid- time; specified provided ated within er changes 4(j) the substantive signif- to Rule good plaintiff if shows cause for the icant analysis to our as neither has men- failure, the court shall extend the time for tioned the 4(j) amendment of Rule or cited appropriate period. for an However, Petrucelli. we find Petrucelli’s in- 4(m). Fed.R.Civ.P. terpretation of the 4(j) amendment to Rule recently signif We addressed the and its impact retroactive dispositive to the icance of this amendment Petrucelli v. issues before us. There, 4(m) Bohringer, supra. we read Rule Accordingly, even though we have deter- require “to court good to extend if time mined that the district court abused its dis- cause is shown and to allow a court discretion in inexplicably cretion finding “good cause” showing dismiss or extend time absent a diligence, for MCI’s lack of the retroactive Petrucelli, good cause.” 46 F.3d at 1305. 4(m) effect of Rule means that the district Here the statute of limitations inis issue. In court had the discretion to allow this action Petrucelli, emphasized we expiration proceed even in the “good absence of require statute of limitations does not cause.” We view the district court’s decision service, the court to extend the time for to extend time as an exercise of its discretion the court has discretion to dismiss the case Rule, therefore, under that affirm we refiling even if the of the action is barred. district court’s denial of Teleeoncepts’ motion See id. at 1306. alsoWe noted that Rule to dismiss. 4(m) apply retroactively, should to all mat pending ters at the time it became effective D. Statute of Limitations just practicable.” “insofar as Id. at Í305 (quoting The Order of the United States Teleeoncepts argues that the district Supreme Adopting Amending Court improperly denied its motion for sum Federal Rules of (April Civil Procedure mary judgment upon based the statute of 1993)). Here, such application retroactive limitations. The Communications Act of just both practicable as the provides district court “[a]ll actions at law already made a determination that there recovery carriers for charges, their lawful is some basis excuse MCI’s any part thereof, lack of dili begun, shall be within gence. result, aAs the district years court would two from the time the cause of action have discretion to pro- accrues, allow MCI’s action 415(a) and not after.” 47 U.S.C. of the district court’s cause Our review states that a The Act further summary judgment Teleeoncepts’ the transmission of denial respect “in plenary. shall, sec- III As purposes of this motion message for the Gulfstream soc., Aerospace delivery Corp., ... Inc. v. tion, upon deemed to accrue be Gulfstream (3d 425, Cir.1993); 47 429 v. Bd. and not after.” F.2d by the carrier thereof Schafer of Pa., 415(e) (1982). However, Pittsburgh, Educ. Sch. Dist. § as noted Pub. U.S.C. of of (3d Cir.1990). 243, that It is clear above, provides tariff MCI’s FCC by receipt. analysis upon that our is controlled 47 U.S.C. payable bills are “MCI’s 415(a). However, § we must paid days after the determine not within Amounts past pur a cause of “accrues” for be when action the invoice will considered date of poses of that statue. due....” resolving impression, In this issue of first court, Teleeoncepts argued In the district urges guided by Teleeoncepts us to be it when received payment that was due decisions that have construed the numerous long service in November for distance bills Act, in of limitations the Commerce statute 1989, of action accrued and MCI’s cause 16(3) 1978),8 § (repealed on see 49 U.S.C. Teleeoncepts unpaid. these bills went when Pennsylvania § 415 was which based. that, “past if the due” stan- argued even also Co., v. Carolina Portland Cement R. Co. used, of action accrued were the cause dard (4th Cir.1927); Ter F.2d 760 South Omaha 1989; possi- that the latest in December Co., Co., Inc., Ry. Armour & minal Inc. v. 27, 1989, accrual date was December ble 641, (D.Neb.1974); F.Supp. Baker v. terminating ser- MCI issued its letter when 1314, Mfg. Corp., F.Supp. Chamberlain than was more MCI’s action filed vice. Since (N.D.Ill.1973). cases courts In those potential accrual years any from of these two action to that a carrier’s recover ruled dates, Teleeoncepts concludes that the delivery is made or charges accrues when untimely. was tendered, irrespective what occurs subse rejected position district court this The delivery. Teleeoncepts quent to reasons involving col- reasoning that an action “[i]n analogy that cause of action accrued MCI’s receivable, sense common of accounts lection long signals transmitted the distance when it tolling determining date dictates (i.e. delivery”) in 1989. “tendered October limitations, this applicable statute brief 24. Appellant’s upon pay- must look the date which argument per this We do not find MCI was demanded refused.” ment Teleeoncepts At the the cases suasive. time Teleeoncepts, Corp. v. Telecommunications the Commerce Act upon were decided relies (D.N.J. Inc., 92-244, slip op. at 5 Decem- No. respect of action in provided “[t]he cause 28,1993). MCI court concluded that ber shall, purposes for shipment property years after April 1992—two had until section, upon be deemed accrue of this its Teleeoncepts payment remit failed to delivery by the delivery or tender of thereof initiate 1990—to final invoice March 16(3)(e) carrier, § 49 U.S.C. and not after.” Moreover, suggested the court this action. 1978).9 However, the Commerce (repealed if it focus on December were to that even designed: Act is letter, payment would 1989 termination which all causes of (allowing fix one date on January be due until tariff). action, shipper in favor of day both those contained in the period the 30 carrier, respect January in favor with complaint on those MCI filed the Since any particular shipment, should be deemed timely the court concluded was that, accrued, application in the summary to have so Teleeoncepts’ motion for denied suit, limiting time section judgment. upon defined in 49 U.S.C. "Accrual” is now after relied Telecon- 9. 8. In the cases to a 11706(g) "[a] claim related decided, 16(3) § which states § cepts had been U.S.C. property under section shipment of accrues this replaced § repealed and with 49 U.S.C. delivery by delivery carrier.” or tender of § 49 U.S.C.

situation would not arise wherein claims in delivered or tendered. It is then that the party arising particu- favor of one out of a reasonably customer should know of the al shipment lar would be barred and those leged problem. See Central Scott Tel. Co. v. party favor of the other not be barred. Co., Long Teleconnect Sys. Distance Servs. & (S.D.Iowa F.Supp. 1317, 1993)10 Pennsylvania R. 1320-21 16 F.2d at 761. (the upon court relied the FCC’s declaration Although explanation of “accrues” in 415(e) only § “concerns a carrier’s liabil 415(e) is similar to that contained ity to its customers for failure to transmit a corresponding provision of the Commerce message in accordance with its common car Act, provisions upon those two totally rest obligations”). rier Anchorage See also Tel. policy different considerations. Alascom, Inc., Util. v. 4 FCC Red. 2472 explicit [Commerce The isAct] that accru- (1989) (“Section 415(e) is 16(S)(e) concerned with a § al synonymous under is not or liability carrier’s to its customer for mutually failure to interchangeable with collectabili- ”); message transmit a ... ty MCI or dueness of Telecommu the debt and that Co., Corp. nications point delivery any of Pac. Bell Tel. overrides convention- F.C.C. (1990) (“Section 415(e) al Red. 3462 judicially inapplica notion of when an action is ma- _ [C]ongress anticipated complaints. tures ble to MCI’s the mul- That Section con period titude variations cerns a liability of limita- carrier’s to its customers ...”). tions that would result if conventional stan- triggering period

dards of were used 16(3)(a) (e) promulgated and and in order agree We that the pe limitations to avoid creating such variation a uni- 415(e) § riod applies contained in to actions irrespective form time of accrual of when brought by the carrier’s allege customer that the action generally could have been a breach of a common obligation carrier’s brought. against not to an action the customer. Co., Ry. South here, Omaha Terminal 373 F.Supp. Accordingly, the statute of limitations 415(a) 644. Different purposes § considerations arise for when accrues with “dis the conflict is between a covery right telecommunications wrong or or of the facts company and its customer. It would be non- on which knowledge such chargeable is sensical to conclude that a cause of action to law.” Central Scott Tel. 832 F.Supp. at charges collect for transmission of a tele- 1320. MCI’s tariff tells us when that oc phone message call accrues when is deliv- tariff, curred. Under that “MCI’s bills are ered. Such a rule would allow a carrier to payable upon receipt,” however, “[a]mounts sue a customer as soon as the carrier com- paid days within 30 after the date of the ” pletes telephone connection if even invoice will past be considered due.... We pay, customer has not refused to if even give must these ordinary words their mean given every customer has indication that ing. McGinnes, See Strite v. it pay upon receipt would of an accurate bill. (3d Cir.), denied, cert. 379 U.S. When a completed, call is the carrier has (1964) (the S.Ct. 13 L.Ed.2d 43 words typically service, not even billed for the employed given are plain “their ordinary every right customer has to assume that meaning, except where the context in which it will any liability not incur long pays so itas they are used renders then a different deno the bill expected that is at some future time. tation, legal or where or technical words are

However, where a customer seeks used and it redress is clear from their use that the from a legal intended.”). telecommunications carrier or meaning based technical upon improper Teleconcepts’ obligations transmission of a telecom- past became due 30 signal, munications days it is reasonable to con- after particular the date of a invoice. It clude that the cause of action in favor of only is therefore then that MCI’s cause of customer 415(a) does arise when message accrued, § action under and it is at Citing 1161, ¶ Group, Williams Telecommunications FCC Red. 16 n. 35 Cos., Inc. v. Chesapeake & Potomac Tel.

HOI properly in an year not be included action clock started the two point not yet that are later installments barred. ticking. Corbin, supra, at 823-24. Moreover, duty Teleconeepts’ (both and as reflected under tariff Here, MCI accrued cause of action first is akin to an billing practice) actual MCI’s 8,1989—30 days after the date on December payments. to make installment obligation long November bills. distance contract, a new cause installment “In an days Additional causes of action accrued 30 payment date each arises from the action subsequent the date of each of MCI’s after No. Board the Dist. Trustees missed.” MCI could have instituted suit to re- bills. Eng. Fund v. Kahle Pension Machinists’ bill, payment any brought an cover on one (3d Cir.1994) (citing Corp., 43 they payment all action as did to recover Corbin, § 951 on Contracts A. Corbin However, MCI’s action to have of them. (1951)). runs of limitations “[T]he statute timely as to the bills it must have been all of from the time against each installment years within date on been filed two due, is, from the time when becomes each which a cause of action accrued on it.” Id. might brought to recover be partial Engineering Kahle breach. Limitations of (quoting 51 Am.Jur.2d: (action as to Corp., 43 F.3d at 861 barred 133). v. § Metromedia Co. See also Actions unpaid due installments which came those Assoc., 532, 655 139 N.J. Mountain Hartz year prior to six of limitations of the statute (contract (1995) 1379, between 1380-81 A.2d 1381; MPPAA); Metromedia, 655 A.2d at whereby reim lessor lessor was to lessee and Corbin, 951, supra, § at 823-24. indepen use of an lessee lessee’s burse Thus, untimely MCI’s as to the install cleaning treated like an dent 8, amounts owed in bills dated November a new cause of action contract and thus ment 8, 1989, 15, 1989, and November December period subject to its own limitations accrued MCI’s cause of action for these bills 1989. month lessor failed to reim for each 8, 1989, 15, on accrued December December lessee); Cooper Electric Kiamichi burse 8, 1990, January respectively. and Underwood, 358, P.2d 359-60 ative v. complaint not until Janu- Since the filed (electric (Okla.Ct.App.1992) cooperative’s 1992, 15, recovery for bills is ary those electricity provide was atón contract year statute limitations barred two of monthly thus contract and each installment 415(a). §of cause of due constituted new installment limitations). its of action with own statute However, timely all action is as to MCI’s period by a statute of limitations The fixed Accordingly, can subsequent MCI bills. begins to run from the ‘accrual owing its suit for amounts maintain ‘cause action’ is of action.’ of cause Since 8, 15, 1989;11 January bills dated December concept, seri- so uncertain and variable 1990; 1990; 8, 1990; January 9, February injustice may the court- be done unless ous 17, 8, 1990; March 1990. March judicial applying such a uses discretion judgment Accordingly, we reverse ‘partial’ of a in the case of breaches statute court to court and remand the district is much single contract. No doubt there judgment from its amount deduct authority for statement that where 1989, 15, 8, November bills dated November lie for a series separate actions would 8, 1989, to recalcu- and December breaches, operates against each the statute ac- interest prejudgment the award of late time each separately as of the when one cordingly. brought, that this could been one the fact that after rule is affected Attorney’s E. Fees more have occurred two or such breaches challenges award join Teleconeepts all cause plaintiff them in one must expend attorney’s arguing hours course, a first fees Of if an action for of action. statute, “clearly exces- by MCI’s were by the it can- ed counsel is barred instalment accrued on this bill. date the of action to the from cause Suit was instituted two years day sive,” discovery was no since there and most because Bell allowed the fraudulent “hack- merely preparation of the work involved the ing” to by furnishing occur a defective dial Appellant’s pleadings. See brief at 32-38. Teleeoneepts’ tone. third-party complaint allege does not the basis for the district court must exercise subject jurisdiction, nor does in awarding attorney’s its discretion informed the district court juris- state the basis of its Greenawalt, v. fees. See Pawlak 713 F.2d However, diction. since there was no inde- (3d 972, Cir.1983), denied, cert. 464 U.S. pendent basis for (1984). 104 S.Ct. 79 L.Ed.2d 172 claim, over that we believe that the district Thus, our standard review is a narrow one. supplemental exercised “We can find an abuse of if discretion no based on the FCC tariff. See 28 U.S.C. [person] adopt reasonable would the district § (Supp.1993).12 [people] court’s view. If reasonable could propriety differ as to the of the action taken Congress judicially codified the cre court, by the trial then it cannot be said that pendent ated doctrines ancillary juris the trial court abused its discretion.” Silber diction under the “Supplemental name Juris (3d Cir.1982) Bogle, man v. 683 F.2d diction” at 28 U.S.C. 1367. Section 1367 (citation omitted). jurisdictional embodies the standard estab The district court was familiar with the lished in United Mine Workers America v. counsel, efforts of and conducted a careful Gibbs, 383 U.S. review of the spent time that counsel work L.Ed.2d Lyon Whisman, ing on this case. The court found that the (3d Cir.1995); 45 F.3d Sinclair v. “actual reasonably hours claimed were in fact Inc., Soniform, (3d Cir. expended by counsel.” MCI Telecommuni 1991). Accordingly, requirements three Inc., Corp. Teleconcepts, cations v. No. 92- must be satisfied before a federal court (D.N.J. 244, 1994). slip op. February 25, at 3 supplemental jurisdiction. exercise “The Teleeoneepts specify does not how the dis federal claim must have substance sufficient review, trict court abused its discretion in its subject to confer jurisdiction on the any and we do not think that such abuse of Gibbs, court.” 725, 383 U.S. at 86 S.Ct. at Accordingly, discretion occurred. affirm we 1138. The state and federal claims must attorney’s However, the award fees. derive from a operative common nucleus of ruling view of our on the statute of limita facts, and the claims must they be such that tions, should, upon remand, the district court ordinarily would expected be to be tried in make attorney’s whatever review of it fees judicial id.; one proceeding. Lyon, See 45 adjust feels and prior warranted the award of F.3d at 760. if fees the court feels that such a reduction or adjustment appropriate. not, is now We do We believe that party the third com however, any position take as to whether the plaint 1367(a). prerequisites satisfies the §of any adjustment. should make such 1331, §§ 28 U.S.C. and 1337 confer over MCI’s claim. MCI’s Third-Party F. claim Teleeoneepts’ and third-party action Finally, Teleeoneepts argues that both arise out of the fraudulent “hacking” granting district court erred in summary activity which purportedly resulted in exorbi judgment defendant, in favor of third-party long tant charges. Moreover, distance logic Bell. grant summary Our review of this prudent judicial and use of resources dictate judgment plenary. III, is See Gulfstream these claims judicial be tried one 995 F.2d at 429. proceeding. Accordingly, third-party ac Teleeoneepts maintains it is entitled to be tion meets the test supplemental jurisdic any liability indemnified for it owes to MCI tion. Diversity jurisdiction $50,000. clearly inapplicable is (1988). § See 28 U.S.C. since the controversy amount in does not exceed

H03 Pa., 123, 491 Pa. However, Elkin v. Bell Tel. Co. does not inquiry our (1980) (footnotes omitted). 371, it argues that the tariff filed A.2d there. Bell end Com Public Utilities Pennsylvania with (“P.U.C.”) Statutory responsibility for places 1. The Framework of the PUC mission Teleconeepts. That upon calls unauthorized long recognized “The PUC has been pertinent part: “The provides in tariff adjudication appropriate forum for the is consid ... subscriber [s]ervice COCOT13 reasonableness, involving adequa- issues and is re of Record as the Customer ered sufficiency public utility cy and services.” charges and associated sponsible all rates Telephone, 431 Pa. Behrend v. Bell service,....” Resolution with A.2d upon turns third-party complaint therefore application power ‘prescribe of this The as to interpretation and PUC has just if must therefore determine facilities ... tariff. service and reason- PUC We jurisdiction applies. furnished, primary ... doctrine of able im- standards be observed, posed, any and followed or all ‘applies Primary jurisdiction where a claim courts, public upon finding, ...’ ... in the utilities originally cognizable any public ‘that or facilities of play into whenever enforcement the service comes unsafe, unreasonable, utility of issues requires claim resolution are inade- ’ scheme, which, regulatory quate, under a ... the PUC ‘shall de- insufficient competence placed special regulation within prescribe, by been termine and contrast, body.’ In order, reasonable, an administrative safe, adequate, suffi- agency provides an legislature cient, observed, when or facilities to be jurisdiction,’ primary with ‘exclusive furnished, employed ...’ enforced or original preempts the courts’ Telephone, Elkin v. Bell 491 Pa. subject matter. over the (1980), §§ A.2d see P.S. Tose, 34 Bay Hotel & Casino Greate (1959) (repealed replaced by 66 (3d Cir.1994) (citations 1227, 1230 omit n. 5. (1978)). Pennsyl- §§ Pa.C.S. ted). an adminis legislature If a vested Utility public requires utili- vania Public Law juris primary agency exclusive trative with tariffs with the PUC. ties to file diction, only forum agency (Purdon Supp.1995). 1979 & Pa.C.S. jurisdiction may complaints that within which binding dispositive of are and These tariffs though brought. 1230. the Id. at Even be rights the and liabilities between custom- the the of exclu parties have not raised doctrine public utility. See 66 Pa.C.S. er and the jurisdiction, must determine primary we sive 1979). (Purdon § The PUC en- third-party complaint be heard should if the regula- and power over its tariffs forcement We PUC in the first are by the instance.14 tions, to tar- pertain matters that those and concept of pri that mindful of the fact the particular the are to be within iffs considered jurisdiction: mary 66 Pa.C.S. expertise of the PUC. See polite gesture of deference simply not is 1979). (Purdon seq. et advisory opinion seeking an agency the long Accordingly, PUC has “[t]he ignore is free to the wherein the court appropriate the forum for recognized as been Rather, once the agency’s determination. involving adjudication the rea of issues the specific properly a matter or a refers court sufficiency pub sonableness, adequacy of agency’s that determi- agency, issue Elkin, 420 A.2d at 374. utility lic sendees.” binding upon is the court nation Teleconcepts argument, conceded At oral course, appellate re- parties (subject, of reasonableness, challenging channels), that was is not through view normal sufficiency telephone of Bell’s adequacy and pending subject in the to collateral attack service, point in its admitted this and Bell proceeding. argument parties Following asked the acronym oral we 14. for "Customer- "COCOT” is an 13. parties Telephones.” this Coin-Operated supplemental All briefs on issue. to file Owned Teleconcepts agree that is a COCOT within meaning tariff. of that term in the PUC plaintiff to this court. supplemental exper- brief See Bell's fell area of within PUC’s 1-2, Thus, Elkin, disput- 7. it is not tise. 420 A.2d. at 377. Supp. Brief subject third-party matter of the ed that the By contrast, in DeFrancesco the court held complaint is within the of the allegation damaged that the plain- that fire PUC, agency appropriate is city property tiffs compa- because the water by the issues forum resolve raised ny negligently proper failed to maintain wa- determination, however, That complaint. pressure ter did not fall within the PUC’s analysis, necessary to our not suffi- though is expertise jurisdiction. primary and thus its inquiry. Our inquiry our must cient to end The court reasoned: upon of whether resolution Tele- then focus controversy now before us ... is not against requires spe- Bell concepts’ claim reasonableness, general one which the of the PUC. competence cial adequacy utility’s sufficiency public or aof hasty referring not be too Courts should question. service is drawn into Resolution agency, develop to an or to a matter appellant’s upon depended claims no agencies on the ‘dependence’ whenever regulation predicated rule or pecu- on the controversy remotely involves some issue expertise PUC, liar agency of the no poli- arguably falling within domain cy, question no of service or facilities owed ‘Expertise’ agency’s ‘expertise.’ no tal- general public, particular and no stan- dissolving jurisdiction. a court’s Ac- isman safety dard of or convenience articulated judicial and adminis- PUC_ commodation Rather,_ [r]esolving not mean trative functions does abdication question the essential of whether the utili- judicial responsibility.... ty perform failed to its mandated duties Therefore, requires where the knowledge experi- no recondite or agency’s jurisdiction and where scope within ence and falls within the of the ordi- complex requiring special nary it is a business our courts. judge jury with competence, which DeFrancesco, 453 A.2d at 597. familiar, or could not be would not routinely Courts have looked to Elkin and proper is for the court procedure to refer particular DeFrancesco to determine if a con appropriate agency.... to the the matter troversy implicated special competence hand, Where, the other the matter is Optimum Image, the PUC. See Inc. v. Phi peculiarly agency’s within the area one Pa.Super. la. Elec. 600 A.2d but is which expertise, one the courts or (1991) (allegations 556-57 tariff was vio determine, jury equally are well-suited to sup lated the substandard and defective must not responsibil- the court abdicate its ply power controversy electrical brought ity. primary jurisdiction PUC); within the Elkin, A.2d at Inc., I.F.T., Pa.Super. Ostrov (1991) (action A.2d did not come Expertise 2. Need for The the PUC’s primary within the of PUC since above, implicate noted issues plaintiff As that did not contend that medical exami utility’s a provision tariff are deemed to be within the nation plan self-insurance violat special expertise of PUC. In the addition we the regulations governing ed PUC’s rules or Elkin, guided are and DeFrancesco v. any self-insurance motor nor carriers other Co., insurance) regulation Western Pa. Water Pa. 453 A.2d PUC rule or for self Elkin, In the court held that Light Schriner Pa. Power & allegations that Bell negligently Pa.Super. 177, (1985) to fur failed 501 A.2d 1130-31 nish rapid (citing the effi customer and “reasonable DeFrancesco the court held prob that respect cient with to “stray three voltage” depends upon service” wide-area lem “no rule (“WATS”) lines, telephone regulation deliberate predicated or upon peculiar the ly plaintiff adequate furnish expertise refused to with PUC ...” the and thus was service, directory information primary jurisdiction PUC); assistance and within the negligently Pa., failed to furnish tele written Morrow v. Bell Tel. Co. Pa.Super. phone (1984) for prospective numbers customers of (plaintiffs A.2d 551-52

H05 Accordingly, pri “the doctrine of relating to utility’s rates challenge public to mary jurisdiction applies where the adminis regard- practice charges and its service toll provide agency cannot a means of trative primary within the deposits held to be ing party to complete complaining redress the PUC). the jurisdiction of dispute yet the involves issues that are Here, Bell’s dispute centers around clearly in the better resolved first instance any tariff under its techni- performance agency charged by the administrative with in the have existed deficiencies that cal dispute.” regulating the matter of the equipment. its That generated dial tone Ostrov, at 586 A.2d 413. The doctrine re may rise fall on the issue of complaint or a to in quires court transfer issue that complied with its obli- in which Bell manner expertise to the admin volves administrative “reasonable, provide its tariff to gation under exercising agency charged with that istrative agency The can service. that ... efficient” Bros., F.2d at discretion. Richman compliance with that best determine Bell's “Essentially, the doctrine n. creates addition, Teleeoneepts’ In tariff is the PUC. relationship workable between the courts and allegation service transcends of deficient agencies wherein, appropri administrative and, potentially, controversy least present circumstances, ate the courts can adequacy of Bell’s question the calls into agency’s views on issues within benefit Teleeoneepts general public as service to the Elkin, agency’s competence.” A.2d the second dial tone was neither claims that at 376. Teleeoneepts nor owners. unique to COCOT Optimum supra, plaintiff Image, In sensitive to the need must therefore be We Philadelphia Company sued the Electric agency uniformity consistency poli- (“PECO”) alleging utility “wrongful- that the suggests further PUC cy, which negligently, carelessly ly, and without rea- ini- Teleeoneepts’ claim merits of decide the delivered, over cause an extended sonable Ostrov, Elkin, 377; tially. 420 A.2d at See time, unreasonably period of defective elec- (“matters involving gen- A.2d premises. power” plaintiffs trical business adequacy utility’s of a eral reasonableness trial transferred the determination primary public are within the service to the Pennsylvania liability to the PUC. The [PUC].”). Superior affirmed. Court alleges power the electrical [Plaintiff that] Sought Effect the Relief 3. The supplied by per- exceeded the ten PECO by PECO’s tariff cent variation allowed Nevertheless, despite the need for addition, [plaintiff] In filed with the PUC. liability Teleeoneepts’ PUC determine it alleges power ... with which claim, empowered third-party the PUC is not supplied was and outside substandard damages, Teleeoneepts award is seek- regulatory requirements and that the in the of indemnification. ing damages nature experienced investigat- problem it was not (“the Elkin, at 374 PUC has no 420 A.2d proper equipment. ed with the However, authority damages”). award Pennsylvania Supreme approved Court response, at all In PECO contends where, here, plain- procedure bifurcated provided power compli- times electrical utility upon lat- public sues a based tiff the PUC and ance with its tariff filed with provide adequate, failure to purported ter’s and maintained ade- otherwise furnished service, sufficient but seeks reasonable or efficient, safe and reasonable ser- quate, Elkin, remedy. A.2d damages See 420 [plaintiff]. vices and facilities Ostrov, 375-76; A.2d 586 at Under controversy at 556-57. The procedure, of liabili- Id. 600 A.2d this bifurcated the issue Teleeoneepts analogous. to, by, and Bell is initially between ty is transferred decided juris- primary the necessary, appropriate the trial believe that doctrine If We PUC. required the district court utilize damages. See determines diction thereafter Elkin, 377; DeFrancesco, procedure for re- established 453 the bifurcated 420 A.2d at liability damages solving questions of where n. 3. A.2d 596 1106 sought in a involving special are matter legislature state placed had within the exclu- Thus, expertise of although the PUC. sive of a domain state agency. administrative jurisdiction district court had Accordingly, over the analysis third- our here is consistent claim,

party the court erred in deciding with the results reached in such cases. See question liability. That claim v. Railroad, must be U.S. Western 352 U.S. Pacific 59, 63, to the 161, transferred PUC for such a 165, determi- 77 S.Ct. 1 L.Ed.2d 126 If nation. the PUC There, concludes that Telecon- the court stated: cepts Bell, is entitled to indemnification from [t]he doctrine of primary thus may the district court then appro- make an does prescribe ‘more than proce- the mere priate Teleconcepts. award to Optimum See dural timetable of the law suit. It is a Image, 600 A.2d at 557. allocating doctrine making power law over certain aspects’ of commercial rela- language We are aware that in some deci- tions. ‘It transfers from court agency Supreme sions of the United States Court power to determine’ some of the inci- and our sister Appeals Courts of seems to dents of such relations. suggest contrary result here. For exam- ple, 65, Cooper, 258, Reiter v. 352 507 U.S. at U.S. 113 77 S.Ct. at (emphasis 166 added). 1213, (1993) also, S.Ct. Delaware, L.Ed.2d 604 Slocum Court v. L. & Co., stated: 239, W.R. 577, 339 U.S. 70 S.Ct. 94 L.Ed. (1950), and Pennsylvania Railroad Co. v. Referral of the issue to the administrative Day, 548, 1322, U.S. 79 S.Ct. 3 L.Ed.2d agency deprive does not juris- the court of (1959), Bay Greate Hotel and Casi- diction; has discretion to either retain no, supra.

jurisdiction or, if parties would not be unfairly disadvantaged, to dismiss the case Pennsylvania Commonwealth of prejudice. without has committed the by issues raised Telecon cepts’ against claim Bell to the exclusive at -, also, U.S. 113 S.Ct. at 1219. See jurisdiction of Pennsylvania Public Utili Bank, U.S. v. Philadelphia National ties Commission and a federal court cannot U.S. 10 L.Ed.2d 915 amend by state law exercising supplemental (1963) (comparing primary jurisdiction to a jurisdiction. Indeed, a contrary holding prudential doctrine of abstention noting would mean that the federal courts are em primary jurisdiction merely postpones powered to decide matters of state law that preclude and does not juris exercise of courts the affected state lack authority to court), by diction a federal Northwest Air resolve. Supreme — Since the Court of lines, Penn Kent, County Mich., v. Inc. U.S. sylvania has held that “the Utility Public -, (1994) S.Ct. 127 L.Ed.2d 183 Commission has been (failure vested legisla primary jurisdiction to brief resulted ture with original exclusive jurisdiction ...” in waiving doctrine), consideration of the of the issues which requires this suit us to Gross v. Baxter Corp., Healthcare 51 F.3d resolve, Behrend v. Bell (7th Telephone Cir.1995) (the court found the Pa. (1968), 243 A.2d parties we must any had waived pri consideration of remand to the district court for appropriate mary jurisdiction noted, “[i]n this re proceedings. spect, primary jurisdiction quite different from jurisdiction[ ]”), and U.S. Accordingly, we will reverse the district Henri, (9th Cir.1987) grant of summary judgment in favor (“the primary doctrine of jurisdiction, despite of Bell and remand so that the district court what the imply, term does speak can transfer third-party claim to the jurisdictional power of the federal PUC for a determination of liability. The courts[]”). However, none of these eases court retains over this addressed the issue of the authority of a pending liability determination adjudicate federal court to a matter that a the PUC.15 15. We realize that after dispos- the district court opinion, with this the court will be only left with es of the long allocation of charges distance third-party the claim founded on state law. It is between Teleconcepts MCI and in accordance for the district court to decide whether to retain

H07 4. 1230 n. Id. at court.” district diction III. from majority treats dicta Essentially, the above, af- will we stated the reasons For legisla- holding state that Bay as Greate judg- part the reverse part and firm in conferring “exclu- court, by virtue or ture this court, remand and the district ments adminis- aon state jurisdiction primary sive” proceedings court to the district case Article III an agency, divests trative federal opinion. this with consistent jurisdiction. That subject matter of its court analy- rigorous withstand cannot treatment concurring in NYGAARD, Judge, Circuit it,2 majority adopts and, the sis, the extent to judgment. the concurring in and part it errs. I believe sep- I write opinion.1 majority’s join the I ma- the however, I believe because arately, A. juris- primary to respect holding with jority’s unnecessarily will and is incorrect diction “language in recognizes that majority The the courts. federal jurisdiction of limit the a con suggest to ... seems decisions some majority’s decision with the Although agree I at 1106. In Majority trary here.” result I analysis, do jurisdiction primary apply to for the stand deed, host of cases a whole it con- in which manner the agree with not (exclu jurisdiction that primary proposition court’s the district doctrine with that flates otherwise) nothing do with to has subject matter or statutory sive and constitutional v. Reiter third-party jurisdiction. See Teleconcepts’ subject hear jurisdiction 258, -, U.S. Cooper, claim. (“Referral (1993) L.Ed.2d does agency administrative to the the issue I. it jurisdiction; the deprive court par- neither recognizing that majority, The or, if jurisdiction retain to either discretion issue, con- nevertheless the raised

ty below unfairly disadvan not be parties would if ... determine must that cludes “we preju without the case dismiss taged, applies.” jurisdiction primary doctrine Corp. Car Tank dice.”); American General added). It relies (emphasis Majority at 1103 U.S. Terminal El v. Dorado Bay Hotel & on Greate proposition this (1940) 325, 331, L.Ed. 361 432-33, S.Ct. (3d Cir.1994), in Tose, v. Casino subject mat personal (district had court legisla- “when that remarked we which stayed its but should jurisdiction, ter pri- ‘exclusive agency with provides ture issues of certain pending determination hand the courts’ preempts it jurisdiction,’ mary Commission); Commerce Interstate subject matter.” jurisdiction over original County Airlines, Inc. accord Northwest Id, also stated opinion n. 5. That at 1230 — U.S. -, -n. Mich., Kent, are “we because appeal heard that we (1994) 127 L.Ed.2d n. S.Ct. juris- obliged to examine jurisdiction lies primary that if exclusive a belief point, that supplemental deprived forum, courts are federal in another pursuant third-party claim dismiss hand, the other jurisdiction. On 1367(c)(3). subject matter U.S.C. that, "although the district concludes later it com- of MCX's not discuss late claim, I1. would third-party over had 4(j). Because Fed.R-Civ.P. plaint under former question of deciding liabili- erred in the court majori- by the adequately addressed the issue "[t]he that majority ty[,]” 4(m). Rule I find the analysis ty's Rule under pend- this matter jurisdiction over court retains would the result analysis unnecessary to 4(j) Id. PUC.” liability ing determination with my only difference Were this it. not reach with a consistent are These statements at 1106. sepa- however, write would not majority, I jurisdiction vested primary holding exclusive rately. automatically a federal divest does not elsewhere Yet, if this jurisdiction. subject matter regard is unclear. holding in this majority’s to under- holding, is difficult majority's Bay hand, Greate its reliance the one On (rather we must why it concludes stand than, de- sponte must we sua pronouncement its should) circumstances, de- we these under jurisdiction, indicate primary if we have first cide 1108 (primary jurisdiction, subject unlike matter issue sponte sua comity, subject was not

jurisdiction, waivable); is jurisdiction: Gross Common matter Carrier, Inc. v. Booster Corp., Healthcare this Before ques- Court neither side has (7th 703, Cir.1995) F.3d (same); United tioned the validity of the lower court’s Henri, 526, (9th States v. 828 F.2d Cir. views [regarding primary jurisdiction]. 1987) curiam) (per jurisdiction, (primary de Nevertheless, regard because we the main- spite name, the go jurisdic does to the tenance of a proper relationship between courts) power tional of the federal (citing the courts and the Commission matters United Co., States Bessemer & L.E. R.R. affecting transportation policy to be of con- 593, (D.C.Cir.1983)); public concern, Oasis Pet. tinuing we have been con- Corp. v. United Dep’t Energy, States inquire strained aspect into this of the 1558, 1563 (Temp.Emer.Ct.App.1983) decision. (citing United States v. Philadelphia Nat’l 63, Id. at 77 S.Ct. at 165. Its doctrinal Bank, U.S. 83 S.Ct. 10 discussion of primary jurisdiction was like- (1963)). L.Ed.2d 915 wise not jurisdictional cast in terms: The doctrine of primary jurisdiction, like majority acknowledges most of the requiring rule exhaustion of adminis- cases, above attempts but distinguish them remedies, trative is concerned pro- with on the basis that none those eases “ad- moting proper relationships between the dressed the issue of authority of a federal courts and agencies administrative charged adjudicate court to a matter that a state with particular regulatory duties. “Ex- legislature placed had within the exclusive applies haustion” where a cogniza- claim is domain of a state agency.” administrative ble in the first by instance an administra- Majority at distinction, 1106. This that a alone; tive agency judicial interference is legislature’s state or court’s actions di- withheld until the process administrative vest the federal subject courts of matter has run its course. “Primary jurisdiction,” jurisdiction where the same action Con- hand, on the applies other where a claim is gress not, unsupported would by the cases originally cognizable in courts, majority cites. play comes into whenever enforcement of the claim requires In the first ease on resolution of majority, relied issues which, under United regulatory scheme, States v. Western Pac. R.R. placed been U.S. within special (1956), competence L.Ed.2d 126 of an government body; railroads sued the administrative such a the Court ease judicial process suspended Claims recover pending differences between the tariff referral of such they paid rates had issues to been and the administra- rates body tive they for its required believed were views. shipments napalm bombs. The issue was 63-64, whether the Id. at (citing S.Ct. General tariff gasoline in drums or higher Car, American Tank 308 U.S. at tariff incendiary bombs applied 331).3 to the S.Ct. at I therefore conclude that shipments. Neither party raised the issue of when the Western spoke Court Pacific primary jurisdiction court, in the lower but transferring power” “the to determine the Supreme Court, motion, on its own parties’ con- relations from the court agen- to the sidered question of whether cy, exclusive majority see it was speaking of a primary jurisdiction was vested in the jurisprudential Inter- predicated deference on ad- state Commerce Notably, Commission. the ministrative rulemaking authority, not sub- reason gave the Court for considering ject jurisdiction. termine whether primary PUC has exclusive We have said that the Commission insists the jurisdiction, litigated an issue not below. District Court was without cause. agree. With this we do not The action Indeed, the General American Tank Car Court ordinary assumpsit one in on a written was the explicit pronouncement even more in its contract. The had primary jurisdiction existence of elsewhere subject matter parties.... and of the equate does not to a juris- lack 308 U.S. at 60 S.Ct. at 331. diction in the federal courts:

1109 court Pennsylvania state conclusion B. claim. this to hear power no have would defines Constitution III Article sub federal district of a limits outer C. statute, Con By jurisdiction. ject however, follow, that a state does It jurisdiction short grant may choose gress law restrict statutory or decisional may by requiring by example, limits, for of those jurisdiction subject matter federal diversity, or minimal than complete rather that, federal because It is axiomatic courts. diversity amounts jurisdictional imposing be conferred jurisdiction can subject matter jurisdic subject matter Determining cases. a federal by Congress, only or withdrawn task; complex particularly not a tion is state, federal, not law only to look must court stated, Constitu “[t]he has Supreme Court exists, jurisdiction to determine whether capaci to the court given must have tion is a at right issue the substantive when even Congress must it, act of take ty to Jacobi, v. 646 Duchek law. of state creature Finley v. United it....” supplied (9th Cir.1981); v. Markham 415, 419 F.2d 2003, 545, 548, 109 S.Ct. States, U.S. 490 711, News, F.2d 713-16 292 City Newport (1989) of Cir.1961). (quoting 593 2006, L.Ed.2d 104 simply has no (4th a state That Wall.) 252, 247, (6 73 U.S. Cooper, Mayor v. of its constitu- a federal power divest Thus, (1868)). Congress if 851 L.Ed. 18 conferred congressionally tionally or on a jurisdiction exclusive to confer wishes law for been settled jurisdiction divest agency and administrative federal See, v. e.g., Waterman century. nearly a be it would jurisdiction, of that courts Co., 215 Trust Bank & Canal-Louisiana so, al do power constitutional its within 12, 10, 80 43-44, 54 L.Ed. 33, U.S. discussed the cases so in not do though it did Asphalt v.Co. Trust (1909); Title & Land above. Cir.1903) (dictum). (3d 1, 19 Co., F. 127 Clause, Congress Supremacy Under full accord with continues caselaw Modern juris primary confer exclusive likewise Brown, Tomv.Webb early See cases. or administrative federal court4 aon diction Cir.1987); (9th Do 783, Inc., 784 F.2d 807 what courts the state divest agency and 108, Olsen, 771 F.2d v. Bank Nat’l minion subject mat their within be otherwise would Cir.1985); v. Owens- (6th Beach n. 2 116 principle unremarkable This jurisdiction. ter 407, 409 F.2d Corp., 728 Fiberglas Corning primary “exclusive” explains 825, 105 denied, U.S. 469 (7th Cir.), cert. Board Adjustment Railway National (1984); v. Mullen 104, 48 L.Ed.2d 83 S.Ct. two of Supreme Court by the found 971, Co., 975 F.2d 705 Ins. Academy Life Pennsyl upon. See majority relies cases denied, eases), 464 U.S. (8th Cir.) cert. (citing 552, 548, 79 Day, 360 U.S. v. R.R. Co. vania (1983); 101, 105 827, 78 L.Ed.2d S.Ct. 104 (1959); Slo 1325, 1422 1322, L.Ed.2d 3 S.Ct. 1311, Corp., 682 F.2d Kerr-McGee Begay v. Co., U.S. 339 Delaware, R.R. L. & W. v. cum Duchek, cases); Cir.1982) (citing (9th 1315 795 580, 577, L.Ed. 94 244, S.Ct. 70 cases, quoting (citing 4n.& at 419 F.2d 646 (1950). (13 Adm’r, 80 U.S. v. Whitton’s Railway Co. (1871)); Grey Wall.) 270, 571 20 L.Ed. juris may also limit legislature A state Bank & Lexington Lines, State v. Inc. hound enacting a state’s courts own of its diction (8th Cir. 1154-55 Co., F.2d Trust primary vesting exclusive statute 713-16; re In Markham, 1979); subject of course agency, in state board Inc., F.Supp. (USA) English due law and of state Seafood the strictures (“a J.) (Roth, state (D.Del.1990) 281, 285-86 the Fourteenth requirements process type of remedy or that creates statute Bay, Create Amendment. jurisdiction of narrow cannot proceeding Tel. (dictum); v. Bell Behrend n. 5&1230 courts”) Title & Land (quoting the federal 347-48 A2d 431 Pa. 19-20); v. National Codos Trust, F. at majority’s with the Thus, quarrel no I have variety plant (patent, proceedings); (admiralty, mari- See, §§ e.g., 28 U.S.C. cases). copyright protection and cases); (bankruptcy cases prize time Diagnostic Corp., 711 F.Supp. 77-78 ment Eighth under the Amendment. As a (E.D.N.Y.1989); Kanouse v. Westwood Ob- pendent claim under the doctrine of United Gynecological Assocs., stetrical & Gibbs, Mine Workers 383 U.S. 129, (D.N.J.1981) F.Supp. (Brotman, J.). 129 S.Ct. (1966), 16 L.Ed.2d 218 he also Moreover, brought a claim for inviolability malpractice, this of federal but sub- without ject jurisdiction submitting it Pennsylvania matter to to the state malpractice modification applies the panel. even when arbitration right substantive Id. at at 1205-06. In the solely by issue is created concluding state paragraph law and is opinion, our didwe only enforceable before a state administra- state that “the district court was without Webb, agency. tive 807 at subject F.2d 784 jurisdiction matter to hear Hamil- (exclusive remedy before state workers’ com- ton’s related malpractice medical claim.” 624 pensation fund); Beach, (sub- 728 F.2d 407 F.2d at 1212. This statement was not part ject jurisdiction matter exists though even holding, the but was unguarded at most an state purports law to jurisdic- vest exclusive words, choice because in opin- earlier the in Disputes Board); tion Industrial Begay, ion we stated: (workers’ 682 F.2d at 1315-17 compensation There question is no power we have system); Liberty K.A.T., Mut. Ins. Co. v. under Gibbs to consider this claim. But Inc., 855 F.Supp. (N.D.Ind.1994) 984-85 Gibbs requires also that the federal court (failure to exhaust state administrative reme- pendent determine claims in accordance dies); Jones v. National Union Fire Ins. with the applicable Here, state law. F.Supp. (N.D.Ind.1987) (In- applicable requires state law that a mal- Board). Disputes dustrial practice claim be submitted to arbitration opinions Recent of this court have been being before Thus, considered in court. somewhat rigorous less and detailed in then- while a federal court has power under analysis subject jurisdiction matter than the Gibbs pendent jurisdiction test of to above, the caselaw set forth but are never- malpractice claim, hear a may it exercise theless in basic accord with it. In Edelson v. power only this after the claim has been Soricelli, (3d Cir.1979), F.2d submitted to arbitration. We have so held issue was “whether federal court en- first Edelson and now here. tertain Pennsylvania malpractice medical Id. at 1210 n. 6. claim diversity statute, under the 28 U.S.C. Taken together § 1332, light before the claimant has initially abun- tak- dant caselaw above, en to reviewed recourse the state Edelson Arbitration Panels Care_” that, for Health Hamilton teach while Id. Such re- court subject course had jurisdiction was “a precedent condition matter entry over Telecon- judicial into cepts’ the state system.” third-party claim, Id. at 134. it should have re- In the two cases appeal, consolidated on from frained exercising “the it pending a decision district courts although held in the proceedings claimants before the PUC. See made necessary averments for Cheyney College State Faculty Hufstedler, jurisdiction courts, the federal ex- (3d Cir.1983) (likening ercise of diversity jurisdiction be im- would primary jurisdiction abstention) (quoting proper until the claims were arbitrated under Philadelphia Bank, Nat’l U.S. the state procedure.” arbitration Id. at 133 1736). S.Ct. at so, This is not because the (emphasis added) (footnote omitted). We af- primary jurisdiction exclusive of the PUC firmed, notwithstanding ruling of one of deprived the district court of the subject the district courts that Pennsylvania ar- jurisdiction conferred on it panel bitration had primary juris- exclusive Constitution Congress, but because the diction. Id. PUC’s exclusive primary jurisdiction part In the later case Roth, of Hamilton v. 624 of the substantive law of Pennsylvania, law (3d F.2d 1204 Cir.1980), prisoner a state sued which we are apply bound to under the Erie prison doctors for cruel unusual punish- Edelson, doctrine.5 See 610 F.2d at 135. 5. Erie R.R. Tompkins, Co. v. 304 U.S. (1938). Erie, however, L.Ed. 1188 does

HU (defer- Kanouse, F.Supp. at board); approach, this followed courts have Many comple- pending ring exercise pend- exercising refraining from review). panel malpractice medical tion of administrative appropriate completion of ing Webb, example, In proceedings. D. that, than dismiss rather opined jurisdiction, subject matter lack of holding scope brings me That characterize more accurate “[i]t Bay if holds Greate because Bay, of Greate complaint dismissal for the reason does, our Internal majority believes as the complaint, as belief as the us to compels follow 9.1 Operating Procedure upon a claim law, state not of did a matter juris- it I consider it, of whether regardless the because granted be relief could which case, a casino that sound. In prudentially state [the of remedy provision exclusive a settlement to enforce gambler a sued a barred statute] compensation workers’ gaming losses. his concerning agreement claim.” negligence law common counterclaimed, alleging that gambler The Beach, Likewise, the 784-85. at F.2d 807 although it gamble him to allowed the casino opined: court the counter-' On intoxicated. he was knew court ruling casino, the district that the Despite our and the claim, jury found for the suit, we this trial, to entertain which jurisdiction had for a new a motion filed gambler summary judgment entry ruling, of the that appealed affirm then He denied. was the cause has eliminated arguing that cross-appealed, Indiana because the casino plaintiffs. the jurisdiction asserted have not did district court the jurisdiction vesting exclusive resti- law order jurisdiction Indiana to exclusive because employees and their disputes between Control Casino over the vested with was tution operates disputes therefore, board that, in the “the employers district Commission plaintiffs. to the jurisdiction court doors state exercised to close not have court should remedy in judicial of a F.3d at The state’s denial the over counterclaim.” the substantive added). is a denial ease this (emphases An em- plaintiffs. by the right asserted trial. new of the the denial We affirmed kin representatives or his ployee Bay panel stated The Greate 1235-37. Id. at In- the before than claim other no make to “obliged examine it that was footnote in a Accordingly, the Board. Disputes dustrial district jurisdiction subject matter the over the jurisdiction no courts have state in a engaged it n. court,” id. at there- plaintiffs claims, plaintiffs’ juris- primary analysis of exclusive detailed federal in this press to no claim have fore ex- was not jurisdiction diction, holding that entirely upon state action, depends which that determi- Based on Id. clusive. at law. to, and indeed need nation, did not panel Interstate (citing Woods at F.2d analysis of effect not, engage an did U.S. Realty jurisdic- primary finding of exclusive that (1949); Begay, 682 1237, L.Ed. 1524 power court’s the district on have tion would F.2d at 1316-19). Begay, 682 Accord case. to hear or even grant restitution to state (case failure dismissed 1316-19 the Commis- that determined the court Once could state upon which any claim jurisdic- primary have exclusive not sion did Markham, at 717-18 relief); grant for new motion tion, determined it to matters (“Erie not extend does doctrine the district properly denied trial nonex- require held not Erie jurisdiction;” court. circumstances jurisdiction under ereise 4 of footnote conclude (case I therefore dis- Jones, F.Supp. case); in terms speaks Bay, which Greate relief claim when to state for failure missed is jurisdiction, subject matter court’s industrial state only obtained from could be Markham, 292 See exclusively by law. federal subject on apply state law require us to not matter III Article 717-18. F.2d at to determine governed That power hear case. dictum and should be followed here.6 plicated; thus, To we would not normally reach majority extent relies on it for its the issue at stage this of the proceedings. holding, places weight more Bay Greate bear, than it placing will Bay Greate in con- B. opinions

flict our with Edelson and Hamil- In primary jurisdiction eases, however, we ton, Supreme opinion Court’s in Reiter discretion consider on our own mo and the supra. other discussed cases tion whether applies. doctrine — Airlines, Northwest U.S. at -n. 10; S.Ct. at 863 n. Western Pacific, 352 E. U.S. at 77 S.Ct. at 165. In Western sum, that, In I although conclude the dis- Pacific, Supreme Court reached that is trict court sue public because of the concern over over Teleconcepts’ third-party claim, the ex- proper relationship between the courts and primary jurisdiction clusive PUC ICC. 352 U.S. at 77 S.Ct. at 165. part of the substantive law of Pennsylvania. There, interpretations courts’ public Accordingly, to the extent Pennsylva- that a tariffs had potential to differ significantly nia grant state court is unable to relief at this from those of agency charged with their time, an Ane-bound federal likewise regulation, potential with the of causing un ordinarily grant not it. certainty and resulting in harm to either shippers or railroads. hand, On the other Airlines, Northwest a case in which the II. Court did not consider the doctrine pri mary jurisdiction, at issue were the rates a A. county airport authority charged airlines. I “ordinarily” use posture refer to the case, This like Pacific, Western involves type which this usually case comes before public tariffs, appears which weigh in fa- a district court —the situation in which one or vor of the majority’s decision to examine the parties more of the raises the issue of exclu- primary jurisdiction Discretion, issue. jurisdiction sive primary as bar to relief in course, exactly that —a choice decisions, case, federal In forum. such a the court not a rule of law—so should not be inferred abstain exercising should jurisdiction from its every ease involving a requires tariff pending completion of proceedings before the same case, result. however, In this agree I case, agency. administrative however, This with the majority’s decision to reach the is different primary because exclusive juris- issue of primary exclusive litigated diction was not in the district court. (though jurisdictional not rationale).7 with its If primary jurisdiction exclusive did divest I therefore part, concur in and concur in subject district court’s jurisdic- matter judgment. tion, the majority would be undeniably cor- rect reaching sponte the issue sua for the

first time on appeal. As I already shown, subject im- not 6. Bay The Greate court relied for "duty” its party claims in the proceeding federal rather examine the juris- PUC, Bell, than before the which did not diction on Employers Ins. Wausau v. Crown Of Now, object, won below. that third-party claim (3d Cork & Cir.1990). Seal PUC, will be sent back before the where Bell will Cork, however, Crown primary juris- not be forced to litigation bear costs of and the case, diction but was garden-variety diversity risk of an Nevertheless, adverse outcome. we suit engaged, quite in which we properly, in a parties did ask the supplemental briefing on sponte sua consideration of require- whether the primary jurisdiction, and argue did Bell diversity jurisdiction ments for Cork, existed. Crown parties had waived the issue and that we quite simply, supports Bay’s neither Greate should therefore not pronouncement My reach it. conclusion majority’s nor on it. reliance might have been they different had made that I am troubled somewhat the effect of our argument. Teleconcepts decision. chose to assert its third-

Case Details

Case Name: MCI Telecommunications Corp. v. Teleconcepts, Inc.

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 8, 1995

Citation: 71 F.3d 1086

Docket Number: 94-5426

Court Abbreviation: 3rd Cir.