Gerard R. Stowers, Esq.
Elizabeth B. Elmore, Esq.
Bowles Rice McDavid Graff & Love
Joseph J. Starsick, Jr, Esq.
Charleston, West Virginia
Attorneys for the Petitioner
Robert B. Sayre, Esq.
Beckley, West Virginia
Attorney for Beckley Hospital, Inc.
JUSTICE NEELY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Although the general rule is that one must exhaust
administrative remedies before going into court to enforce a right,
W. Va. Code 24-4-7  confers concurrent jurisdiction on the
Public Service Commission and the circuit court in a limited number
of cases-- namely, those cases seeking a refund based on rules and
practices of the Public Service Commission that are clear and
unambiguous. In these limited cases, a plaintiff can proceed
either before the Public Service Commission or the circuit court.
However, these avenues are mutually exclusive: once a Public
Service Commission complaint is filed, an appeal to the circuit
court is foreclosed until the administrative remedies are
2. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance."
Syllabus Point 1, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979).
The Chesapeake and Potomac Telephone Company of West
Virginia (hereinafter C&P) seeks to prohibit the Honorable John C.
Ashworth, Judge of the Circuit Court of Raleigh County, from
conducting further proceedings in a lawsuit filed by Beckley
Hospital, Inc. (hereinafter the hospital) against C&P. C&P
contends that the circuit court lacks subject matter jurisdiction
because the hospital failed to exhaust its administrative remedies
or, in the alternative, that the circuit court should refrain and
defer to the Public Service Commission (hereinafter PSC) because
the issues require the special expertise of the PSC. Because of
the complexity of the issues, we find that the circuit court should
have deferred to the PSC. Therefore, we grant the writ.
The underlying action involves C&P's telephone service to
the hospital. Before 5 November 1991, the hospital's telephone
lines, at its request, were billed under a "flat rate," that the
hospital alleges amounted to $93.50 per line per month. After 5
November 1991, the hospital's telephone lines, again at its
request, were billed under a "measured rate," that the hospital
alleges amounted to $24.50 per line per month.See footnote 1
requested the service change based on a recommendation the hospital
received following an audit of its telephone bills.
On 29 January 1992, the hospital filed a complaint with
the PSC (hereinafter PSC complaint), alleging that C&P had
overcharged it the difference between the two services for twelve
direct inward dialing (hereinafter DID) trunks connected to the
hospital's private branch exchange (hereinafter PBX).See footnote 2
hearing before the PSC's administrative law judge (hereinafter
ALJ), the hospital presented two theories for recovery: (1) the
hospital's equipment entitled it to consideration as an exception
to the general prohibition against mixing services (hereinafter
mixing services theory)See footnote 3
; and (2) C&P was prohibited from charging
the hospital the flat rate under the "Hotel Guest Room" tariff
provision (hereinafter "Hotel Guest Room" theory).See footnote 4
After the ALJ
found that the hospital had not proven that it was entitled to a
refund, the hospital sought and received a voluntary dismissal of
its PSC complaint from the PSC.See footnote 5
The hospital then filed the underlying action in the
circuit court seeking a refund of $1,725.00 per month from November
5, 1986 through November 5, 1991, or a total of $103,500.00.
Alleging that the PSC should consider this matter, C&P moved to
dismiss the hospital's circuit court complaint (hereinafter
complaint). The circuit court found: (1) collateral estoppel did
not apply because the PSC had vacated the ALJ's decision; and (2)
although "a consideration of the meaning and interpretation of the
defendant's tariff rates and rules and regulation of the Public
Service Commission," may be required in this refund case, such
"consideration is not beyond the jurisdiction of this court."
After the circuit court refused to dismiss the hospital's
complaint, C&P sought a writ of prohibition from this Court.
W. Va. Code 24-4-7  states, in pertinent part:
Any person, firm or corporation claiming to
be damaged by any violation of this chapter by
any public utility subject to the provisions
of this chapter, may make complaint to the
commission, as provided herein, and bring suit
in his own behalf for the recovery of the
damages for which such public utility may be
liable under this chapter in any circuit court
having jurisdiction. . . .
In Carter v. Willis, 145 W. Va. 779, 783, 117 S.E.2d 594, 596 (1960), we recognized that a user of a public utility is not restricted to the PSC for relief, but can, under W. Va. Code 24-4-7 , "bring suit in his own behalf for the recovery of the damages. . . in any circuit court having jurisdiction." In Syl. Pt. 1, Carter id., we stated:
Where a person has been injured by the refusal of a public utility to comply with a valid order of the Public Service Commission, the injured person may recover compensation therefor in any court of competent jurisdiction.
In Carter, because the plaintiff exhausted his administrative remedies before suing the public utility, the circuit court addressed only the issue of damages.
In Wheeling Steel Corp. v. Public Service Commission, 90
W. Va. 74, 79, 110 S.E. 489, 491 (1922), we stated that "the
jurisdiction and authority of the Public Service Commission extends
no further than to prescribe proper rates and proper practices, and
to direct the public service corporations to comply with them in
the future." In Wheeling we recognized the concurrent jurisdiction
authorized in the statute:
Section 18 of the Public Service Commission Act clearly authorizes a suit to be brought in any circuit court having jurisdiction to recover for an injury done by a public service corporation by indulging in any practice not allowed by law.
Wheeling id. In Wheeling, we agreed with the PSC that it lacked
jurisdiction to decide a case where the sole question remaining
concerned whether the applicable rate was "prescribed by the
contract in effect" or "prescribed by the Commission." We
The Public Service Commission of West Virginia has no authority to entertain a complaint for the purpose of determining that a public service corporation has charged rates in excess of those authorized, when it appears that the rate which it is contended was applicable, and which such corporation is charged with exceeding, is no longer applicable to the service rendered, and the decision sought could only be for the purpose of fixing a basis for recovery of the amount of the excessive charge.
Syl., Wheeling id. See Syl. Pt. 1, Charleston Apartments Corp. v. Appalachian Electric Power Co., 118 W. Va. 694, 192 S.E. 294 (1937) (a suit to recover charges in excess of the legal rate "presented a judicial question determinable by the courts, and [was] in no wise contingent upon a preliminary inquiry by the public service commission"); Syl. Pt. 1, Natural Gas Co. of W.Va. v. Sommerville, 113 W. Va. 100, 166 S.E. 852 (1932); City of Philippi v. Tygarts Valley Water Co., 99 W. Va. 473, 482, 129 S.E. 465, 468 (1925) (commission "does not afford the relator the remedy to enforce the right or compel the performance").
Although the general rule is that one must exhaust
administrative remedies before going into court to enforce a right,
W. Va. Code 24-4-7  confers concurrent jurisdiction on the
PSC and the circuit court in a limited number of cases-- namely,
those cases seeking a refund based on rules and practices of the
PSC that are clear and unambiguous. In these limited cases, a
plaintiff can proceed either before the PSC or the circuit court.
However, these avenues are mutually exclusive: once a PSC complaint
is filed, an appeal to the circuit court is foreclosed until the
administrative remedies are exhausted.
In this case, the hospital argues that its suit is
either a simple refund case that is under the jurisdiction of the
circuit court or a refund case relying on clear and unambiguous PSC
rules and practices that also can be decided by the circuit court.
C&P maintains this suit involves interpretations of its tariff for
which the special competence of the PSC is required.
Although W. Va. Code 24-4-7  grants concurrent
jurisdiction in a limited number of cases seeking a refund based on
clear and unambiguous rules and practices of the PSC, this case
raises policy issues that should be considered by the PSC in the
interest of a uniform and expert administration of the public
utilities' regulatory scheme. The hospital's theories justifying
a refund involve complex issues; the hospital's mixing services
theory apparently has yet to be considered by the PSC. Indeed, a
surcharge tariff was proposed for those facilities where mixed
services might be allowed. See supra note 3 for a discussion of
the hospital mixing services theory. Moreover, the hospital's
"Hotel Guest Room" theory apparently depends on a segregation of
the hospital lines with measured service required for only
"nonadministrative" lines. See supra note 4, for a discussion of
the hospital's "Hotel Guest Room" theory. Because the issues in
this case present unusual and technical questions of tariff
interpretation or application, the PSC should make an initial
determination concerning the proper interpretation of C&P tariff.
Our rule for determining when to grant a writ of
prohibition was stated in Syl. Pt. 1 Hinkle v. Black, 164 W. Va.
112, 262 S.E.2d 744 (1979):
In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.
In accord Syl. Pt. 6, State ex rel McClanahan v. Hamilton, 189 W. Va. 290, ___, 430 S.E.2d 569, 575 (1993) (Hinkle's rule was based upon principles of judicial economy); see Whitow v. Bd. of Ed. of Kanawha County, ___ W. Va. ___, ___ S.E.2d ___, No. 21362
(Filed Nov. 23, 1993) Slip Op. at 5; State Farm Mutual Auto Ins.
Co. v. Stephens, 188 W. Va. 622, ___, 425 S.E.2d 577, 581 (1992).
In this case, the hospital chose to file a complaint with
the PSC; when, however, the ALJ's decision was adverse to the
hospital, it vacated its PSC complaint and filed a complaint in
circuit court. Because of the complexity of the issues, the
circuit court should have deferred any decision in the matter until
the PSC was able to make an initial determination concerning C&P's
tariff. Under Hinkle, supra, this Court examines the adequacy of
other available remedies and the over-all economy of effort and
money among litigants, lawyers and courts. Because this case must
be considered by the PSC, we grant a writ of prohibition. However,
in order to allow the hospital to proceed in this case, we find
that the hospital may, at its option, have the ALJ's order
reinstated and proceed with an appeal to the PSC.
Accordingly, for the reasons set forth above, a writ of
prohibition is awarded.
Footnote: 1 1In addition to the monthly charge, each measured rate call is "measured on a time-of-day, distance called and length-of message
basis," and "[r]ates for messages between two points are based on the airline mileage between rate centers. . . ." C&P Local Exchange Services Tariff, P.S.C.-W.Va.-No. 202 § 1(B)(6)(a) and (c).
Footnote: 2 2According to C&P, a PBX is an on-site telephone system either owned by or leased from a source other than the telephone company. The hospital acquired its PBX system in 1989 from a local vendor. C&P provides PBX trunk lines, the telephone lines that connect the hospital's PBX to the public network. The PBX trunk lines are equipped with DID trunks.
According to John T. Scott, a witness for the hospital during the ALJ hearing, the hospital in 1989 subscribed to seven DID trunk lines and approximately one year to 16 months later, increased their DID trunk lines to twelve. According to Mr. Scott no outgoing calls could be made over the hospital's DID trunk lines.
Footnote: 3 3 The hospital's PSC complaint alleges that under the mixing services theory the DID trunks were exempt from the C&P's tariff, which generally prohibits the mixing of flat and measured services on the same premises. The tariff provides, in pertinent part, that "[d]ifferent classes of service will not be furnished to the same customer on the same premises. . . except for customers who have,
for example, facsimile machines or any other special type equipment
on premise that is not used to access local calling. . . ." (C&P's
Local Exchange Services Tariff, P.S.C.-W.Va.-No. 202 § 1(B)(5).)
The hospital's PSC complaint maintains that because the prohibition
against mixing does not apply to DID trunks, the hospital's DID
trunks should be billed at the measured service rate and that a
refund was due for the difference between the two rates for its DID
According to Dannie L. Walker, a Telecommunication Engineer employed by the PSC, if mixing of services is permitted, C&P's current Commission-approved tariff should be replaced with a surcharge for mixed service. Mr. Walker testified that the hospital's proposed mixing of classes of service would allow it to make out-going calls over its flat rate, but to receive in-coming calls over its measured rate. The ALJ found that the hospital "appeared to have abandoned . . .[the mixing service theory and] to assert, instead that it was entitled to a refund under the 'Hotel Guest Room' section."
Footnote: 4 4The "Hotel Guest Room" theory derives from C&P's tariff section, that provides in pertinent part that "Plan 3 [flat-rate] trunks are not provided at hotels, or other locations of like nature, where the service is desired for use of those other than the management." C&P's Local Exchange Services Tariff, P.S.C.- W.Va.-No. 202 § 1(B)(9)(b). According to the ALJ's opinion (transcription of the ALJ hearing was not provided), the parties agree that a hotel or hospital with a PBX system is required to segregate its telephone lines into "administrative" (used by management or administrative personnel) and "nonadministrative" (used by patients or guests). According to the ALJ, measured service is required only for "nonadministrative" lines. The ALJ found that the hospital had four "nonadministrative" lines (two for local calling and two for long distance calling) and that after 5 November 1991, the hospital subscribed to measured service for all its telephone lines. Robert L. Swoope, C&P's Director of Regulatory Matters testified that despite C&P's requests, the hospital waited until the hearing day to inform C&P of the number of "nonadministrative lines." The ALJ found that "the Hospital was correctly charged for the type of service it had ordered and received."
Footnote: 5 5On another matter, the ALJ held that "C&P should credit Beckley Hospital's account for the previously calculated $1,407.60 for the November/December 1991 period, if it has not done so previously."