Gary A. Hedrick|
Romney, West Virginia
James Paul Geary, II, Esq.|
Geary & Geary
Petersburg, West Virginia
Attorney for Appellee
2. Where an administrative agency and the courts have concurrent
jurisdiction of an issue which requires the agency's special expertise and which extends
beyond the conventional experience of judges, the doctrine of primary jurisdiction applies.
In such a case, the court should refrain from exercising jurisdiction until after the agency has
resolved the issue. The court's decision whether to apply the primary jurisdiction doctrine
is reviewed on appeal under an abuse of discretion standard. Syl. pt. 1, State ex rel. Bell
Atlantic-West Virginia, Inc. v. Ranson, 201 W. Va. 402, 497 S.E.2d 755 (1997).
3. In determining whether to apply the primary jurisdiction doctrine,
courts should consider factors such as whether the question at issue is within the
conventional experience of judges; whether the question at issue lies peculiarly within the
agency's discretion or requires the exercise of agency expertise; whether there exists a
danger of inconsistent rulings; and whether a prior application to the agency has been
made. Syl. pt. 2, State ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson, 201 W. Va. 402,
497 S.E.2d 755 (1997).
Appellant Gary A. Hedrick appeals the dismissal with prejudice of his circuit court action against appellee Grant County Public Service District. Mr. Hedrick had sought the extension of water service to his proposed mobile home park and disagreed with the appellee over the cost of the extension. He filed a complaint before the Public Service Commission to compel the extension of water service and filed a complaint in the Circuit Court of Grant County for damages and other relief. Because we find the circuit court erred in its application of the primary jurisdiction doctrine, we reverse.
Appellee Grant County Public Service District (GCPSD) is a public
corporation charged with the duty of developing, operating, and maintaining a public water
system in Grant County, West Virginia. Mr. Hedrick approached the GCPSD and requested
an extension of public water service to his proposed park.
Mr. Hedrick and the GCPSD did not share a similar view of the feasibility of
or costs associated with the extension of water service to Royal Glen. The record does not
reveal all the details of the interactions between Mr. Hedrick and the GCPSD, but it appears
that Mr. Hedrick felt that the GCPSD had a duty under the law to extend service to his park
at no cost to him, provided that he could show that the cost of the extension would be offset
by revenue from the new water customers who would be moving into the mobile home park.
On September 20, 1999, Mr. Hedrick filed a formal complaint with the West
Virginia Public Service Commission (the Commission),See footnote 1
seeking administrative relief and
damages. Mr. Hedrick decided to pursue a two-track approach to his problem, and also filed
suit in the Circuit Court of Grant County on October 14, 1999. Thus this dispute proceeded
simultaneously before the Commission and the circuit court.
The GCPSD eventually produced an estimate for the cost of extending service
to the park of approximately $28,000. Mr. Hedrick claimed that the cost estimate was
grossly exaggerated, that the GCPSD could itself do the work, but refused to, and that the
GCPSD had generally engaged in a course of action that caused him undue delay in the
construction of his mobile home park.
The GCPSD took the position that its estimate was reasonable, because it must
comply with a prevailing wage statute that increases its labor costs, and that a line larger
than the one proposed by Mr. Hedrick would be necessary to accommodate expected future
demand for water. The GCPSD also pointed out that Mr. Hedrick had not actually built the
mobile home park (at least at the time this dispute began) and that there was no guarantee
that sufficient customers would be added to the system to offset the cost of the extension.
In the circuit court proceeding, the GCPSD moved to dismiss for lack of
jurisdiction, on the basis that Mr. Hedrick had not exhausted his administrative remedies.
The court held a hearing on this motion on April 6, 2000, and by order dated May 4, 2000,
the court dismissed the case. Mr. Hedrick moved the court to reconsider, and on June 27,
2000, the court denied Mr. Hedrick's motions. It is from this order that he appeals.
Meanwhile, the administrative machinery ground on, and an administrative law
judge entered a recommended decision on April 17, 2000, to dismiss Mr. Hedrick's
complaint before the Commission. In short, the ALJ ruled that the estimate provided by the
GCPSD was reasonable, the GCPSD's actions toward Mr. Hedrick were reasonable, and Mr.
Hedrick would need to follow the proper procedures before renewing any complaint, namely,
he would have to provide a deposit sufficient to protect the GCPSD if the eventual number
of customers did not cover the cost of the extension, or he would have to enter into an
alternative arrangement with the GCPSD whereby he would agree to construct the extension
Mr. Hedrick filed exceptions to the recommended decision on May 3, 2000,
and subsequently on July 19, 2000, the Commission denied Mr. Hedrick's exceptions,
adopted the recommended decision, and dismissed Mr. Hedrick's complaint. Mr. Hedrick
appealed that adverse ruling of the Commission to this Court and presented oral argument
on the Motion Docket of October 31, 2000. This Court denied his petition in that appeal, 5-
0, the next day.
The basic position of the GCPSD is that the lower court was right to dismiss the case because of Mr. Hedrick's other pending complaint. Mr. Hedrick argues that, even if part of his suit should be barred because of his pending Commission complaint, his claim for compensatory and punitive damages should still be heard, as the Commission has no authority to act on such a claim.
W. Va. Code § 24-2-1 (1991). The Public Service Commission obviously has the power to
regulate those under its jurisdiction:
(a) The commission is hereby given power to investigate all rates, methods and practices of public utilities subject to the provisions of this chapter; to require them to conform to the laws of this state and to all rules, regulations and orders of the commission not contrary to law; and to require copies of all reports, rates, classifications, schedules and timetables in effect and used by the public utility or other person, to be filed with the commission, and all other information desired by the commission relating to the investigation and requirements, including inventories of all property in such form and detail as the commission may prescribe. The commission may compel obedience to its lawful orders by mandamus or injunction or other proper proceedings in the name of the state in any circuit court having jurisdiction of the parties or of the subject matter, or the supreme court of appeals direct, and the proceedings shall have priority over all pending cases. . . .
W. Va. Code § 24-2-2 (1998). The Commission also has the power to seek the imposition
of penalties upon violators:
Every officer, agent, employee, or stockholder of any public utility subject to the provisions of this chapter, and every patron, passenger, shipper or consignee, or other person, who shall violate any provision of this chapter, or who procures, aids or abets any violation of any such provision by any such public utility shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one thousand dollars or be confined in jail not more than one year, or both, in the discretion of the court. . . .
W. Va. Code § 24-4-1 (1923). Finally, the Commission may seek or impose other or
additional penalties for various violations.See footnote 2
When one is aggrieved by the actions of a regulated utility, one may file a
petition before the Commission, as Mr. Hedrick did:
Any person, firm, association of persons, corporation, municipality or county, complaining of anything done or omitted to be done by any public utility subject to this chapter, in contravention of the provisions thereof, or any duty owing by it under the provisions of this chapter, may present to the commission a petition which shall succinctly state all the facts. Whereupon, if there shall appear to be any reasonable ground to investigate such complaint, a statement of the charges thus made shall be forwarded by the commission to such public utility, which shall be called upon to satisfy such complaint or to answer to the same in writing within a reasonable time to be specified by the commission. If such public utility within the time specified shall make reparation for the injury alleged to have been done, or correct the practice complained of and obey the law and discharge its duties in the premises, then it shall be relieved of liability to the complainant for the particular violation of the law or duty complained of. If such public utility shall not satisfy the complainant within the time specified, it shall be the duty of the commission to investigate the same in such manner and by such means as it shall deem proper.
W. Va. Code § 24-4-6 (1923). The above language informs us that the Commission has
jurisdiction over the actions of the Grant County Public Service District, the power to
regulate its rates and practices, and if necessary, the prerogative to seek fines or jail time for
its directors or officers.
It appears that Mr. Hedrick understands that the Commission had jurisdiction
over the majority of his dispute with the GCPSD. But Mr. Hedrick argues that the circuit
court was wrong to dismiss his claim with prejudice, because our law allows an aggrieved
party to initiate an action before the Public Service Commission and before a circuit court.
Specifically, he calls our attention to the following:
Damages recoverable for violations
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 any such action, the court may compel the
attendance of any agent, officer, director or employee of such
corporation as a witness and require also the production of all
books, papers and documents which may be used as evidence,
and in the trial thereof such witnesses may be compelled to
testify, but any such witness shall not be prosecuted for any
offense concerning which he is compelled hereunder to testify.
W. Va. Code § 24-4-7 (1923)(emphasis added).
The use of the connecting word and in W. Va. Code § 22-4-7 suggests that
the Legislature intended to allow aggrieved parties the right to pursue specified forms of
relief in either or both forums. The statute makes clear that a person who has been damaged
by a violation of the public service commission statutes may -- not shall, but may -- make
complaint to the commission . . . and bring suit in his own behalf for the recovery of the
damages . . . in any circuit court[.] We perceive in this statute no requirement that an
aggrieved party must exhaust all administrative remedies before the Commission before
pursuing a claim for damages in a circuit court.See footnote 3
The lower court incorrectly took the position that, although one may pursue
relief before either body, the two routes are mutually exclusive, and that, until Mr. Hedrick
has exhausted his administrative remedies, the court has no subject matter jurisdiction.
Therefore, the court dismissed Mr. Hedrick's complaint, relying upon another telephone
company case, State ex rel. C & P Telephone Co. v. Ashworth, 190 W. Va. 547, 438 S.E.2d
890 (1993). In Ashworth, we held that:
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.
Id. syl. pt. 1.
In a more recent case concerning a similar dispute, we discussed the holding
of Ashworth, and noted that the case turned upon the issue of the Commission's specialized
This Court applied the primary jurisdiction doctrine in Ashworth, concluding that the case, which presented unusual and technical questions of tariff interpretation or application, raise[d] policy issues that should be considered by the PSC in the interest of a uniform and expert administration of the public utilities' regulatory scheme.
State ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson, 201 W. Va. 402, 412, 497 S.E.2d 755, 765 (1997)(quoting State ex rel. C & P Telephone Co. v. Ashworth, 190 W. Va. 547, 551, 438 S.E.2d 890, 894 (1993).
We then went on to explain the primary jurisdiction doctrine in greater detail in Ranson:
Where an administrative agency and the courts have concurrent jurisdiction of an issue which requires the agency's special expertise and which extends beyond the conventional experience of judges, the doctrine of primary jurisdiction applies. In such a case, the court should refrain from exercising jurisdiction until after the agency has resolved the issue. The court's decision whether to apply the primary jurisdiction doctrine is reviewed on appeal under an abuse of discretion standard.
Syl. pt. 1, State ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson, 201 W. Va. 402, 497
S.E.2d 755 (1997). Our concern in Ranson was to allow circuit courts to retain jurisdiction
over a case, unless resolving the dispute would require the special expertise of an
administrative agency. We went on explain how a court should decide whether or not to
In determining whether to apply the primary jurisdiction doctrine, courts should consider factors such as whether the question at issue is within the conventional experience of judges; whether the question at issue lies peculiarly within the agency's discretion or requires the exercise of agency expertise; whether there exists a danger of inconsistent rulings; and whether a prior application to the agency has been made.
Id. Syl. pt. 2. In his pro se complaint before the circuit court, Mr. Hedrick claimed that the
GCPSD caused an undue delay in the delivery of water service to his mobile home park. In
that circuit court complaint he prayed for, inter alia, compensatory damages for lost revenue,
and punitive damages for, in Mr. Hedrick's words, the GCPSD's wilful, or reckless, or
negligent non compliance with PSC rules and its breech of duty.
Mr. Hedrick seems to have grasped the basic notion that he could obtain some
relief from the Commission, but that certain relief, namely damages, should be pursued
before the circuit court.
We find that such a suit for damages is within the conventional experience of judges, and does not lie peculiarly within the agency's discretion or require the exercise of agency expertise.See footnote 4 4 Thus we conclude that the circuit court erred in dismissing the case with prejudice under the primary jurisdiction doctrine. We remand the case so that the lower court can consider Mr. Hedrick's claims for damages and for the costs of the litigation.
Footnote: 1 1Though we often abbreviate Public Service Commission as PSC we substitute the word Commission in this opinion, so as to avoid confusion with the Grant County Public Service District, abbreviated GCPSD.
Footnote: 2 2See, W. Va. Code § 24-4-2 (1935) (Penalty for falsifying, destroying or altering entries and for making false statements); W. Va. Code § 24-4-3 (1923) (Additional penalties for violating certain orders of commission); W. Va. Code § 24-4-4 (1923) (Penalty for violating orders of commission for which no other penalty is provided); W. Va. Code § 24-4- 5 (1923) (Violation of commission's orders as contempt punishable by commission).