Harmon v. Pacific Telephone & Telegraph Co.

FOX, P. J.

In his complaint plaintiff alleges that for some time prior to February, 1959, defendant had furnished him with two-party residential telephone service. The regular monthly charge therefor was a flat rate of $3.50 plus 35 cents tax, making a total charge of $3.85 per month. Up to and including February 13, 1959, plaintiff had paid in full for all service charges for which he was billed. On the statement dated March 13, 1959, defendant billed plaintiff for message units and tax thereon in the amount of 52 cents in addition to the regular monthly service charge and tax of $3.85. On the statement for April 13, 1959, defendant billed plaintiff for message units and tax thereon in the amount of $1.03 in addition to the regular monthly service charge and tax thereon. Plaintiff claimed that no one had made any calls from his number which were subject to a message unit charge and advised defendant that he would not pay such charges unless and until they were identified as to date and telephone number. Defendant refused either to identify the aforesaid calls or to eliminate them from its statements. Plaintiff refused to pay the aforesaid charges. As a consequence, defendant disconnected its service to plaintiff and removed its telephone from his premises.

Plaintiff alleges that an actual controversy exists between him and defendant in that defendant claims the right to charge its subscribers for “message units” without identifying the calls, whereas plaintiff claims that he has a right to receive an identified list of such calls. Plaintiff seeks a declaration as to whether defendant has a right to charge him and other subscribers for “message units” without identifying such calls upon demand.

Defendant demurred on the ground that the "court has no jurisdiction over the subject matter of this action.” It was sustained without leave to amend. A judgment of dismissal followed. It is from this judgment that plaintiff has appealed.

Our Constitution an.d statutes have vested in the Public Utilities Commission the exclusive jurisdiction over

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the conditions under which public utilities render their public utility services. (Cal. Const., art. XII, §23; Pub. Util. Code, §§ 701, 730, 761, 1709 and 1759.) Section 1759 of the Public Utilities Code provides that no court except the Supreme Court has the power to review, reverse, correct, or annul any order or decision of the commission. (See