Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-8-1995

MCI Telecomm. Corp. v. Teleconcepts, Inc.
Precedential or Non-Precedential:

Docket 94-5426




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             UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT



                      No. 94-5426



           MCI TELECOMMUNICATIONS CORPORATION

                           v.

             TELECONCEPTS, INCORPORATION,
                         Defendant/Third-Party Plaintiff-
                                                Appellant

                           v.

                 BELL OF PENNSYLVANIA,
                              Third-Party Defendant-Appellee

              TELECONCEPTS, INCORPORATION,
                               Appellant.



   ON APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE DISTRICT OF NEW JERSEY
               (D.C. Civil No. 92-244)


                 Argued: March 1, 1995
Before:   GREENBERG, NYGAARD and McKEE, Circuit Judges.
                (Filed December 8, l995



                         CHARLES J. CASALE, JR. (Argued)
                         396 Whitehorse Avenue
                         Trenton, New Jersey 08610

                         Attorney for Defendant/Third
                         Party Plaintiff-Appellant
                         Teleconcepts, Inc.

                         KENNETH M. DENTI (Argued)
                         Duane, Morris & Heckscher
                         Sagemore Corporate Center



                           1
                                8000 Sagemore Drive, Suite
                       8303
                                Marlton, New Jersey 08053
                                Attorney for Plaintiff-
                Appellee
                                MCI Telecommunications Corp.

                                LISA M. BELLINO (Argued)
                                Marks, O'Neill, Reilly &
                                  O'Brien, P.C.
                                1234 Market Street, Suite 1910
                                Philadelphia, PA 19107

                                Attorney for Third-Party
                                Defendant-Appellee
                                Bell of Pennsylvania




                         OPINION OF THE COURT



McKEE, Circuit Judge

     MCI Telecommunications ("MCI"), a long distance

telecommunications service provider, has sued Teleconcepts to

recover the cost of services MCI provided under MCI's Federal

Communications Commission tariff ("FCC tariff").   Teleconcepts

raised the untimely service of the complaint and the statute of
limitations as defenses, and also brought a third-party action

against Bell of Pennsylvania ("Bell"), Teleconcepts' local

telephone exchange carrier.    Bell disclaimed liability under the

terms of its Pennsylvania Public Utility Commission Tariff ("PUC

Tariff").    The district court held that the action was not time-

barred and that "good cause" existed for the late service of the

complaint.   The court also granted summary judgment to both MCI




                                  2
and Bell holding that the FCC and PUC tariffs both placed the

responsibility for unauthorized telephone calls on Teleconcepts.

     Because we find that MCI's action was partially barred by

the statute of limitations, and that the doctrine of primary

jurisdiction required the district court to transfer the third-

party complaint to the Pennsylvania Public Utility Commission, we

will reverse in part and remand for further proceedings.
                       I. FACTUAL BACKGROUND

     Teleconcepts owns coin operated telephones - commonly

referred to as "pay phones" - that it places on the premises of

various businesses.    MCI supplied long distance telephone service

to Teleconcepts from January 1988 through March 1990 under the

terms and conditions of the tariff MCI had filed with the Federal

Communications Commission.   When Teleconcepts' pay phones are

used, Teleconcepts incurs a cost to Bell of Pennsylvania for the

use of Bell's telephone lines.   The monthly bill for the line

charges also includes the customer's long distance charges for

the preceding month.   Teleconcepts' November 1989 bills from MCI

for long distance calls included long distance service charges

for international telephone calls in excess of $7,000.

Teleconcepts was billed under six different account numbers,

which presumably represent six different Teleconcepts' pay

phones.   The November charges exceeded prior months' long

distance charges to such an extent that Teleconcepts was certain

that a billing error had occurred, and so informed Bell. However,

since Bell was merely a conduit for billing long distance




                                 3
charges, it responded by telling Teleconcepts to contact its long

distance carrier - MCI.

     Teleconcepts contacted MCI and informed it of the numerous

long distance calls to the Dominican Republic and Puerto Rico

that Teleconcepts believed had not been made from any of its

phones and requested a credit.     When MCI refused, Teleconcepts

told MCI that it would not pay for these long distance charges,

but MCI continued to provide long distance service.     When

Teleconcepts received its December bills it discovered over

$13,000 in doubtful charges to Puerto Rico and the Dominican

Republic.     Teleconcepts again refused to pay these charges.

     On December 27, 1989, MCI notified Teleconcepts that its

long distance service was terminated.     However, for some reason,

MCI failed to terminate long distance service until the following

March.   In the interim, Teleconcepts continued to receive bills

containing exorbitant long distance charges, and Teleconcepts

continued to refuse to pay.     Finally, MCI sued Teleconcepts to

recover the amount of unpaid charges for long distance services

MCI had provided to Teleconcepts through March 1990 - $47,565.84.

     Eventually, Teleconcepts came to believe that the questioned

telephone calls had resulted from a fraudulent process known as

"hacking."0    This occurred when a person called an 800 number on


0
       It is unclear exactly when Teleconcepts first learned that
it may have been a "hacking" victim. In an affidavit filed in
the district court, John Goida, president of Teleconcepts, states
he learned generally of the fraudulent "hacking" process during
an unrelated phone conversation with an employee in Bell's fraud
division, and he deduced that this is what happened to his pay
phones.


                                  4
a pay phone and remained silent until the receiving party hung

up. A second dial tone would then be given to the 800 caller who

could then call anywhere he or she desired without placing any

additional coins in the telephone.

     On January 15, 1992, MCI filed its initial summons and

complaint in an effort to collect the unpaid charges from

Teleconcepts.   MCI attempted service through the Mercer County

Sheriff's Department, but its initial attempt was unsuccessful.

Service was eventually made on June 25, 1992.   Teleconcepts

responded by filing a third-party complaint against Bell of

Pennsylvania in which it alleged that Bell was responsible for

the defect in the dial tone that allowed the illegal "hacking"

and that Bell should therefore indemnify Teleconcepts for any

liability it may have to MCI.0   Teleconcepts eventually moved to

dismiss the complaint because MCI had failed to effect service of

process within 120 days of filing of the complaint as required by

Federal Rule of Civil Procedure 4(j).    In an order dated

September 15, 1992, the district court denied Teleconcepts'

motion to dismiss MCI's complaint finding that "good cause"

excused the late service.

     Subsequently, the parties filed cross-motions for summary

judgment.   Teleconcepts claimed that MCI's action was untimely

since it was not filed within the two year statute of limitations

contained in the Communications Act.    Teleconcepts argued that

MCI's cause of action accrued either when it refused to pay the

0
       It appears that the defect in the dial tone has since been
remedied.


                                 5
November 1989 bills, or at the latest, on December 27, 1989, when

MCI gave notice that Teleconcepts' long distance services were

terminated.   MCI countered by arguing that its action was timely

because Teleconcepts' services continued until March 1990 despite

the December 27, 1989 disconnect notice.   MCI further argued that

under a 30 day payment provision of its federal tariff, final

payment of the bills would not become due until either April

1990, or January 27, 1990, at the earliest even accepting

Teleconcepts' position.   Thus, MCI claimed the operative date for

commencing an action was either March or April of 1992, or at the

earliest, January 27, 1992.

     The district court denied Teleconcepts' motion for summary

judgment in a memorandum opinion and order dated December 28,

1993.   Additionally, the court held that MCI's federal tariff

placed responsibility for unauthorized calls on Teleconcepts, and

thus, granted MCI's cross-motion for summary judgment.    The court

also granted MCI's request for attorney's fees and, in a separate

memorandum opinion and order dated February 25, 1994, determined

the reasonable amount of such fees to be $11,812.50.     The court

also held that the PUC tariff placed responsibility for

unauthorized calls on payphone owners, and therefore granted

summary judgment in favor of Bell and against Teleconcepts in a

memorandum and order entered on June 20, 1994.

     On appeal, Teleconcepts challenges the district court's

denial of its motion to dismiss for failure to timely serve the

complaint, the denial of its motion for summary judgment on the




                                6
statute of limitations defense, the grant of summary judgment in

favor of Bell, and the amount of the attorney's fee award.
                          II. DISCUSSION

                     A. Appellate Jurisdiction

     We must first determine whether we have jurisdiction to

review the issues raised by Teleconcepts on appeal.   The notice

of appeal reads as follows:
          Teleconcepts, Inc., defendant-third party
          plaintiff appeals to the United States Court
          of Appeals for the Third Circuit from an
          order of summary judgment disposing the
          remaining claims of the District Court for
          the District of New Jersey entered in this
          case June 20, 1994, in favor of third party
          defendant, Bell of Pennsylvania and December
          28, 1993 in favor of plaintiff, MCI
          Telecommunications, Inc.

App. at 1.

     Federal Rule of Appellate Procedure 3(c) provides, in

pertinent part, that a notice of appeal "must designate the

judgment, order or part thereof appealed from . . . ."   Fed. R.

App. P. 3(c).   If a party does not satisfy the requirements of

Federal Rule of Appellate Procedure 3(c), then the appellate
court does not acquire jurisdiction over the undesignated issues.

United States v. Rivera Constr. Co., 

, 298 (3d Cir.

1988).   Even though the notice of appeal does not mention the

September 15, 1992 order (denying Teleconcepts' motion to

dismiss) or the district court's February 25, 1994 memorandum and

order (calculating MCI's award of reasonable attorney's fees),

Teleconcepts challenges both of these decisions in its brief to

this court.   MCI argues that we did not acquire jurisdiction over



                                7
these issues since these orders are neither directly nor

indirectly referred to in the notice of appeal.     Appellee's brief

at 6.

     "Our jurisprudence liberally construes notices of appeals."

Drinkwater v. Union Carbide Corp., 

, 858 (3d Cir.

1990).     Thus, we have held that it is proper to exercise

appellate jurisdiction over orders not specified in the notice of

appeal if "`there is a connection between the specified and

unspecified order, the intention to appeal the unspecified order

is apparent and the opposing party is not prejudiced and has a

full opportunity to brief the issues.'"     Lusardi v. Xerox Corp.,

, 972 (3d Cir. 1992) (quoting Williams v. Guzzardi,

, 49 (3d Cir. 1989)).      These factors are present here.

        We have repeatedly held that "`since . . . only a final

judgment or order is appealable, the appeal of a final judgment

draws into question all prior non-final orders and rulings.'"

(quoting Elfman Motors, Inc. v.

Chrysler Corp., 

, 1253 (3d Cir. 1977)). Teleconcepts

could not appeal the September 15, 1992 order denying its motion

to dismiss MCI's complaint until the district court filed the

December 28, 1993 order of summary judgment in favor of MCI.

Moreover, in disposing of the remaining issues, the December 28,

1993 memorandum opinion refers to the district court's September

15, 1992 order denying Teleconcepts' motion to dismiss.       Thus,

the requisite connection is present.

        Similarly, while the notice of appeal does not refer to the

February 25, 1994 memorandum and order calculating MCI's award of


                                  8
reasonable attorney's fees, an adequate connection exists between

a specified order that designates the prevailing party for

purposes of attorney's fees and an unspecified order that

quantifies the attorney's fee award.     See Bernardsville Bd. of

Educ. v. J.H., 

, 156 n.10 (3d Cir. 1994).     Since the

December 28, 1993 order specifically granted MCI's request for

attorney's fees and merely directed MCI to file an affidavit of

reasonable attorney's fees, there is an adequate connection

between these two orders.

        Moreover, MCI is not prejudiced as it had an opportunity to

brief the disputed issues, and has done so.     See 

n.10.    Accordingly, we hold that we have jurisdiction to review

the September 15, 1992 order denying Teleconcepts' motion to

dismiss and the February 25, 1994 memorandum and order

calculating an award of attorney's fees.
                    B. Subject Matter Jurisdiction

     Before addressing the substantive issues raised by

Teleconcepts we must determine if the district court had subject

matter jurisdiction over MCI's action against Teleconcepts in the

first place.    While neither the district court nor Teleconcepts

ever raised this issue we have an obligation to do so sua sponte.

See Medlin v. Boeing Vertol Co., 

, 960 (3d Cir.
1980); Carlsberg Resources Corp. v. Cambria Sav. & Loan Ass'n,

, 1256 (3d Cir. 1977).

     MCI's action is based upon Teleconcepts' failure to pay MCI

for long distance telephone service MCI provided under the terms

and conditions set forth in MCI's FCC Tariff.    MCI alleges that


                                  9
since it is required to collect the charges on the services

specified in the tariff under § 203 of the Communications Act of

1934, 47 U.S.C. § 203 (1982), subject matter jurisdiction exists

under 28 U.S.C. §§ 1331 and 1337, and the Communications Act of

1934, 47 U.S.C. §151, et seq. (1982).0

     While this circuit has never addressed whether the

collection of unpaid charges for long distance telephone service

under an FCC tariff "arises under" federal law (28 U.S.C. § 1331)

or an act of Congress regulating commerce (28 U.S.C. § 1337) the

majority of courts of appeals that have addressed this issue have

answered in the affirmative.    See Western Union Int'l, Inc. v.

Data Dev., Inc., 

(11th Cir. 1995); MCI

Telecommunications Corp. v. Graham, 

(6th Cir. 1993);

MCI Telecommunications Corp. v. Garden State Inv. Corp., 

(8th Cir. 1992); Ivy Broadcasting Co., Inc. v. Am. Tel. &

Tel. Co., 

(2d Cir. 1968).    But see MCI

Telecommunications Corp. v. Credit Builders of Am., Inc., 

(5th Cir. 1993), vacated,        U.S.     , 

(1993), prior opinion reinstated, 

(5th Cir.),

cert. denied,      U.S.        , 

(1993).

     In Richman Bros. Records, Inc. v. U.S. Sprint Communications

Co., 

, 1438 (3d Cir. 1991), we held that the


0
       28 U.S.C. § 1331 provides that "the district courts shall
have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States." 

. § 1337(a) provides, in part, that "[t]he district courts shall
have original jurisdiction of any civil action of proceeding
arising under any Act of Congress regulating commerce or
protecting trade and against restraints and monopolies . . . ."


                                  10
district court had jurisdiction over Sprint's action under a

tariff filed with the FCC pursuant to 28 U.S.C. § 1337(a).

However, we did not question jurisdiction because there was

diversity of citizenship and we would thus have had jurisdiction

even if federal question jurisdiction failed.   See 

subsequent decisions of our sister circuits and the lack of

diversity here, we now undertake this analysis.

     Those courts of appeals that have held that subject matter

jurisdiction exists under 28 U.S.C. §§ 1331 and/or 1337(a),

reason that a claim for unpaid long distance charges "arises

under" an act of Congress regulating commerce (the Communications

Act) because the claim relies on tariffs that must be filed with

the FCC.0   See Western 

; 

; Garden State 

; Ivy 

.   The lone appellate court to hold otherwise

reasons that the federal common law is appropriate in only a "few

and restricted" circumstances and doubts that collection of a

delinquent phone bill falls within these limited circumstances.

See Credit 

.

     This specific issue was first addressed in Ivy Broadcasting
Co., Inc. v. Am. Tel. & 

.   There, the district court

sua sponte dismissed a suit against A.T. & T. that arose from

0           Although some courts that have addressed this issue
have relied upon § 1331 and others have relied upon § 1337, there
is no difference in these two bases of subject matter
jurisdiction for purposes of our present analysis. See 

("The 'arising under' requirement of section
1337 has been interpreted to be the same as that found in 28
U.S.C. § 1331 . . . ."); Yancoskie v. Delaware River Port
Authority, 

, 725 (3d Cir. 1975) (same).


                                 11
problems that had occurred during a transmission over A.T. & T.'s

telephone wires.   The court reasoned that claims for negligence

and breach of contract did not arise out of the Communications

Act but were founded on tort and contract law, and that the

counterclaim was merely an action for services rendered that also

lacked a federal jurisdictional basis.   On appeal the United

States Court of Appeals for the Second Circuit noted that since

the complaint did not allege a specific violation of the

Communications Act, 47 U.S.C. § 207 did not confer jurisdiction.

Nevertheless, the court reasoned that the broad scheme of federal

regulation of communications carriers indicated a congressional

intent to occupy the field to the exclusion of state law.     See

Ivy 

.
             It seems to us that the congressional
          purpose can be achieved only if a uniform
          federal law governs as to the standards of
          service which the carrier must provide and as
          to the extent of liability for failure to
          comply with such standards.

     The court concluded that since federal law controlled, the

suit "arose under" the laws of the United States as required by

28 U.S.C. § 1331.
          The word 'laws' in § 1331 should be construed
          to include laws created by federal judicial
          decision as well as by congressional
          legislation. The rational of the 1875 grant
          of federal question jurisdiction -- to insure
          the availability of a forum designed to
          minimize the danger of hostility toward, and
          specially suited to the vindication of,
          federally created rights -- is as applicable
          to judicially created rights as to rights
          created by statute.


                                12


     The court also held that 28 U.S.C. § 1337 provided

jurisdiction over the counterclaims.
           The Communications Act of 1934 is an 'Act of
          Congress regulating commerce' within the
          meaning of [§ 1337.] Since we conclude that
          the counterclaims arise under the
          Communications Act insofar as they rely upon
          tariffs which the Act requires to be filed
          with the FCC, we hold that [§ 1337] gives the
          district court jurisdiction over so much of
          the counterclaims as relies upon such
          tariffs.

(footnote omitted) (citations omitted).   The court's

analysis relied heavily upon an analogous inquiry of the Supreme

Court under the Commerce Act in Louisville & N. R. v. Rice, 

, 202 (1918).

     Several other courts have employed the reasoning of Ivy

Broadcasting to hold that federal district courts have subject

matter jurisdiction over actions for unpaid charges for services

provided under an FCC tariff.   In MCI Telecommunications Corp. v.

Garden State Inv. 

, MCI sued to recover unpaid
telecommunications charges, and the district court dismissed the

complaint sua sponte because the complaint did not allege a

specific violation of the Communications Act.   The court reasoned

that there was no need for uniform federal common law governing

claims to collect unpaid telecommunication service charges, and

that there was therefore no basis for the exercise of subject

matter jurisdiction.




                                13
     The United States Court of Appeals for the Eighth Circuit

relied heavily upon Supreme Court decisions involving federal

jurisdiction under the Commerce Act to reverse.   (i.e.   Thurston

Motor Lines, Inc. v. Jordan K. Rand, Ltd., 

(1983)

(per curiam)).0   See Garden State 

.    The

court reasoned that:
          the district court failed to recognize that a
          claim arises under federal law when a right
          created by federal law is an essential
          element of the plaintiff's action. The
          district court stated MCI's claim brought
          under an FCC tariff 'is simply a contract
          action seeking to recover payment for
          services rendered.' The district court's
          characterization of MCI's claim overlooks the
          fact that federal tariffs are the law, not
          mere contracts. Although a user's refusal to
          pay charges fixed by a tariff will often
          arise in the context of a broken contract,
          the carrier's claim for payment is
          necessarily based on the filed tariff.

(citations omitted).


     In analogous circumstances, the United States Court of

Appeals for the Sixth Circuit reversed the district court's sua

sponte dismissal for lack of federal jurisdiction in MCI

Telecommunications Corp. v. 

.   The court held that

MCI's ability to sue was based upon its FCC tariff, and therefore

was rooted in federal law.   See 

-80.     As in

Ivy Broadcasting, the court was persuaded by similarities between

the Communications Act and the Commerce Act and was guided by

0           In Thurston, the Court rejected the Ninth Circuit
Court of Appeals' argument that a carrier's action for payment of
transportation services was a "simple contract collection
action." Garden State 

(citing

)


                                  14
Thurston, Rice and the analysis of the United States Court of

Appeals for the Second Circuit in Ivy Broadcasting.     "[I]t would

be incongruous to impose a different jurisdictional rule under

the Communications Act than under the Commerce Act."     

See also Western 

-97 (subject matter

jurisdiction over a claim for unpaid telecommunications service

charges existed under 28 U.S.C. § 1331 and 28 U.S.C. § 1337).

     Only MCI Telecommunications Corp. v. Credit Builders of Am.,

, reached a contrary result.   There, a supplier of

telecommunications services appealed the district court's

determination that a suit to collect unpaid telecommunications

charges lacked a jurisdictional basis.    On appeal, the plaintiff

argued that the district court had independent federal question

jurisdiction under 28 U.S.C. § 1331 and jurisdiction over matters

arising out of the Communications Act under 28 U.S.C. § 1337.

     The United States Court of Appeals for the Fifth Circuit

began its analysis by noting that:
          the Supreme Court has stated that a case
          arises under federal law if 'it really and
          substantially involves a dispute or
          controversy respecting the validity,
          construction, or effect of such a law, upon
          the determination of which the result
          depends.'

Credit 

(citations omitted).
     The court was not persuaded by the reasoning of Ivy

Broadcasting. Instead, the court reasoned that:
          [a]s the Supreme Court has emphasized, the
          federal common law is appropriate in only a
          'few and restricted' circumstances. Milwaukee
          v. Illinois, 

, 313, 

, 1790, 

(1981). In Texas



                               15
          Industries, Inc. v. Radcliff Materials, Inc.,
          

, 641, 

, 2067, 

(1981), the Supreme Court went on
          to state that 'absent some congressional
          authorization to formulate substantive rules
          of decision, federal common law exists only
          in such narrow areas as those concerned with
          the rights and obligations of the United
          States, interstate and international disputes
          implicating the conflicting rights of States
          or our relations with foreign nations, and
          admiralty cases.' We do not believe that this
          case to collect a delinquent telephone bill
          falls within these limited instances.

  The court held that for these same reasons §1337

did not confer federal question jurisdiction, and that

plaintiff's action for breach of contract or quantum meruit was a

creature of state law.

     We are not persuaded by the analysis in Credit Builders.

MCI's action is based upon, and draws its life from, the tariff

that MCI filed with the Federal Communications Commission.    The

reasoning of Ivy Broadcasting, and the analogous cases decided

under the Commerce Act, see Thurston and 

, persuade us

that the district court did have subject matter jurisdiction over
MCI's action, and Teleconcepts' counterclaim.   However, there are

other jurisdictional problems with that counterclaim which we

discuss in more detail below.
                   C. Late Service of the Complaint.

     When the district court denied Teleconcepts' motion to

dismiss for failure to timely serve the complaint, Federal Rule

of Civil Procedure 4(j) read in pertinent part:
          Summons: Time Limit for Service. If a
          service of the summons and complaint is not
          made upon a defendant within 120 days after


                                16
           the filing of the complaint and the party on
           whose behalf such service was required cannot
           show good cause why such service was not made
           within that period, the action shall be
           dismissed as to that defendant without
           prejudice upon the court's own initiative
           with notice to such party or upon motion.

Fed. R. Civ. P. 4(j).0


     The district court was thus required to dismiss MCI's action

if process was not served within 120 days of the filing of the

complaint unless MCI could show good cause for the delinquency.

See Petrucelli v. Bohringer & Ratzinger, 

, 1304 (3d
Cir. 1995).

     MCI filed its initial summons and complaint on January 15,

1992.   The papers were returned unserved by the Mercer County

Sheriff's Department marked "unable to locate, unknown at address

given" on February 25, 1992.    MCI requested an alias summons on

or about March 12, 1992, after it discovered another address for

service.   The alias summons was returned on an "unknown date" and

forwarded for service on or about May 29, 1992.    Service of

process was eventually achieved at this alternate address on June

25, 1992, well over a month after the 120 days prescribed by Rule

4(j) had lapsed.   MCI never made a request for an extension of

time.

     The district court found that "good cause" excused the late

service, and denied Teleconcepts' motion to dismiss the

complaint.    Our review of the district court's finding of "good
0           As of December 1, 1993, Rule 4(j) was amended and
redesignated Rule 4(m). We discuss the significance of this
amendment infra.



                                 17
cause" is for an abuse of discretion.    See Lovelace v. Acme

Markets, Inc., 

, 83 (3d Cir.), cert. denied, 

, 

(1987);    Braxton v. United States, 

, 242 (3d Cir. 1987).

     The district court did not articulate the factor(s) it

believed constituted "good cause."    The court initially orally

denied Teleconcepts' motion to dismiss during the following

exchange in a telephone conference:
          THE COURT: All right. Now, the defendant
          moved to dismiss the complaint pursuant to
          Rule 4(j), which provides for dismissal
          unless good cause be shown. I would like to
          hear from the defendant before I rule.

          MR. REILLY: Your Honor, after I received the
          response from the plaintiff regarding my
          client's address as 51 Everett Street in
          Princeton, he informed me that that's been
          his address. I understand that he may not
          have been there at the time when the Sheriff
          initially went out. The problem I have with
          the argument is that they did serve him
          eventually at another -- at his residence.

          THE COURT:   Yes.

          MR. REILLY: And that was some four months
          after the initial issuance of the summons and
          complaint, which I still feel is an
          inordinate amount of time --

          THE COURT: Well, I've seen no prejudice. The
          remedy if good cause were not shown would be
          dismissal without prejudice and re-service.
          Under the circumstances, I certainly find
          good cause has been shown. Motion is denied.
          The defendant will answer, move or otherwise
          plead.


     Subsequently, the district court memorialized this decision

in the written order of September 15, 1992.    In that order, the



                                 18
court stated merely that "good cause" had been shown and that the

motion to dismiss was denied for the reasons set forth on the

record.

     Although the district court felt that Teleconcepts had not

been prejudiced by the late service, absence of prejudice alone

can never constitute good cause to excuse late service.    See

United States v. Nuttall, 

, 166-67 (D. Del. 1988)

(courts have considered three factors in determining the

existence of good cause: (1) reasonableness of plaintiff's

efforts to serve (2) prejudice to the defendant by lack of timely

service and (3) whether plaintiff moved for an enlargement of

time to serve).   We have equated "good cause" with the concept of

"excusable neglect" of Federal Rule of Civil Procedure 6(b)(2),

which requires "a demonstration of good faith on the part of the

party seeking an enlargement and some reasonable basis for

noncompliance within the time specified in the rules."    See

(Becker, J., concurring in part and

dissenting in part).0   Thus, while the prejudice may tip the

0          Fed. R. Civ. P 6(b) provides in pertinent part:

          Enlargement. When by these rules or by a
          notice given thereunder or by order of court
          an act is required or allowed to be done at
          or within a specified time, the court for
          cause shown may at any time in its discretion
          (1) with or without motion or notice order
          the period enlarged if request therefor is
          made before the expiration of the period
          originally prescribed or as extended by a
          previous order, or (2) upon motion made after
          the expiration of the specified period permit
          the act to be dome where the failure to act
          was the result of excusable neglect . . . .


                                19
"good cause" scale, the primary focus is on the plaintiff's

reasons for not complying with the time limit in the first place.

Such "justifications" are conspicuously absent in the district

court's oral decision and its subsequent written order. Moreover,

the briefs to this court are silent on this issue and the parties

have therefore not assisted in divining the "good cause" that the

district court found.   In addition, our review of the entire

record has uncovered only one reference to the "good cause" which

the court may have felt supported late service.   In MCI's brief

in opposition to Teleconcepts' motion to dismiss MCI states:
           good cause is shown because service could
          not be made at the address given as the
          registered address for service of process at
          the time the complaint was filed. It was
          necessary to make additional attempts at
          service by locating another address and
          requesting an alias summons.


App. at 35.

     Even if we were to speculate and conclude that this was the

basis for the district court's finding of "good cause," we would

have to conclude that it was an abuse of discretion.

The summons was returned unserved on February 28, 1992.   MCI

learned of Teleconcepts' alternative address as early as March

12, 1992, and requested an alias summons on or about that same

date.   Inexplicably, the summons was not forwarded for service

until on or about May 29, 1992, and not served at this alternate

address until June 25, 1992, well beyond the time limit

prescribed by Rule 4(j).   MCI never moved for an extension of

time.



                                20
       Nothing on this record explains why it took MCI over three

months after it learned of Teleconcepts' alternate address to

serve Teleconcepts.    Moreover, the record does not explain why

MCI never filed a motion to enlarge the time to serve.     See

(alternative means of service and the

ability to extend the time indicate a lack of diligence and weigh

against a finding of good cause).     Since we are presented with no

explanations as to what, if any, circumstances constitute

sufficient "good cause" to excuse MCI's apparent lack of

diligence, we hold that the district court abused its discretion

in finding that good cause existed to excuse the late service.

See 

(good cause does not exist when

there is an "unexplained delinquency on the part of the process

server and lack of oversight by counsel").

       Reversal of a district court's finding that good cause

existed to excuse late service results in the dismissal of an

action, but such dismissal is without prejudice to the plaintiff.

Accordingly, the party can refile the complaint and receive a new

120 day period to serve process.      See 

n.6.

       However, as of December 1, 1993, Rule 4(j) was amended and

redesignated Rule 4(m). Rule 4(m) provides, in part, that:
          If service of the summons and complaint is
          not made upon a defendant within 120 days
          after the filing of the complaint, the court,
          upon motion, or on its own initiative after
          notice to the plaintiff, shall dismiss the
          action without prejudice as to that defendant
          or direct that service be effectuated within
          a specified time; provided that if the
          plaintiff shows good cause for the failure,


                                 21
          the court shall extend the time for service
          for an appropriate period.

Fed. R. Civ. P. 4(m).


     We recently addressed the significance of this amendment in

Petrucelli v. 

.    There, we read Rule 4(m) "to

require a court to extend time if good cause is shown and to

allow a court discretion to dismiss or extend time absent a

showing of good cause."   

.    Here the

statute of limitations is in issue.    In Petrucelli, we emphasized

that the expiration of the statute of limitations does not

require the court to extend the time for service, as the court

has discretion to dismiss the case even if the refiling of the

action is barred.   See 

  We also noted that Rule 4(m)

should apply retroactively, to all matters pending at the time it

became effective "insofar as just and practicable."      

(quoting The Order of the United States Supreme Court Adopting

and Amending the Federal Rules of Civil Procedure (April 22,

1993)).   Here, such retroactive application is both just and

practicable as the district court has already made a

determination that there is some basis to excuse MCI's lack of

diligence.   As a result, the district court would have discretion

to allow MCI's action to proceed upon remand under Rule 4(m) even

though we have determined that no "good cause" was shown under

Rule 4(j).


     [A]s a result of the rule change which led to Rule
     4(m), when entertaining a motion to extend time for
     service, the district court must proceed in the
     following manner. First, the district court should


                                  22
     determine whether good cause exists for an extension of
     time. If good cause is present, the district court
     must extend time for service and the inquiry is ended.
     If, however, good cause does not exist, the court may
     in its discretion decide whether to dismiss the case
     without prejudice or extend time for service.

.   Moreover, the expiration of the statute of

limitations does not prohibit the district court from extending

the time for service.   See 

     The parties here apparently do not consider the substantive

changes to Rule 4(j) significant to our analysis as neither has

mentioned the amendment of Rule 4(j) or cited Petrucelli.

However, we find Petrucelli's interpretation of the amendment to

Rule 4(j) and its retroactive impact dispositive to the issues

before us.

     Accordingly, even though we have determined that the

district court abused its discretion in inexplicably finding

"good cause" for MCI's lack of diligence, the retroactive effect

of Rule 4(m) means that the district court had the discretion to

allow this action to proceed even in the absence of "good cause."

We view the district court's decision to extend time as an
exercise of its discretion under that Rule, and therefore, we

affirm the district court's denial of Teleconcepts' motion to

dismiss.
                           D. Statute of Limitations

     Teleconcepts argues that the district court improperly

denied its motion for summary judgment based upon the statute of

limitations.   The Communications Act of 1934, provides that

"[a]ll actions at law by carriers for recovery of their lawful



                                23
charges, or any part thereof, shall be begun, within two years

from the time the cause of action accrues, and not thereafter."

47 U.S.C. § 415(a) (1982).    The Act further states that a cause

of action "in respect of the transmission of a message shall, for

the purposes of this section, be deemed to accrue upon delivery .

. . thereof by the carrier and not thereafter."   47 U.S.C.

§415(e) (1982).    However, as noted above, MCI's FCC tariff

provides that "MCI's bills are payable upon receipt.    Amounts not

paid within 30 days after the date of the invoice will be

considered past due . . . ."

     In the district court, Teleconcepts argued that payment was

due when it received the bills for long distance service in

November 1989, and MCI's cause of action accrued when these bills

went unpaid.    Teleconcepts also argued that, even if the "past

due" standard were used, the cause of action accrued in December

1989; and that the latest possible accrual date was December 27,

1989, when MCI issued its letter terminating service.      Since

MCI's action was filed more that two years from any of these

potential accrual dates, Teleconcepts concludes that the action

was untimely.

     The district court rejected this position reasoning that

"[i]n an action involving collection of accounts receivable,

common sense dictates that in determining the tolling date of the

applicable statute of limitations, this court must look to the

date upon which payment was demanded and refused."   MCI

Telecommunications Corp. v. Teleconcepts, Inc., No. 92-244, slip

op. at 5 (D.N.J. December 28, 1993).    The court concluded that


                                 24
MCI had until April 16, 1992 - two years after Teleconcepts

failed to remit payment of its final invoice of March 17, 1990 -

to initiate this action.   Moreover, the court suggested that even

if it were to focus on the December 27, 1989 termination letter,

payment would not be due until January 26, 1990 (allowing for the

30 day period contained in the tariff).    Since MCI filed the

complaint on January 15, 1992, the court concluded it was timely

and denied Teleconcepts' motion for summary judgment.

     Our review of the district court's denial of Teleconcepts'

summary judgment motion is plenary.   See Gulfstream II Assoc.,

Inc. v. Gulfstream Aerospace Corp., 

, 429 (3d Cir.

1993); Schafer v. Bd. of Pub. Educ. of Sch. Dist. of Pittsburgh,

Pa., 

, 246 (3d Cir. 1990).    It is clear that our

analysis is controlled by 47 U.S.C. § 415(a).    However, we must

determine when a cause of action "accrues" for purposes of that

statue.

     In resolving this issue of first impression, Teleconcepts

urges us to be guided by the numerous decisions that have

construed the statute of limitations in the Commerce Act, see 49

U.S.C. § 16(3) (repealed 1978)0, on which § 415 was based.    See
Pennsylvania R. Co. v. Carolina Portland Cement Co., 

(4th Cir. 1927); South Omaha Terminal Ry. Co., Inc. v. Armour &

Co., Inc., 

, (D. Neb. 1974); Baker v. Chamberlain

Mfg. Corp., 

, (N.D. Ill. 1973).    In those cases


0
  In 1978, after the cases relied upon by Teleconcepts had been
decided, 49 U.S.C. § 16(3) was repealed and replaced with 49
U.S.C. § 11706.


                                25
the courts ruled that a carrier's action to recover charges

accrues when delivery is made or tendered, irrespective of what

occurs subsequent to delivery.   Teleconcepts reasons by analogy

that MCI's cause of action accrued when it transmitted the long

distance signals (i.e. "tendered delivery") in October 1989.

Appellant's brief at 24.

     We do not find this argument persuasive.   At the time the

cases Teleconcepts relies upon were decided the Commerce Act

provided that "[t]he cause of action in respect to a shipment of

property shall, for purposes of this section, be deemed to accrue

upon delivery or tender of delivery thereof by the carrier, and

not after."   49 U.S.C. §16(3)(e) (repealed 1978).0   However, the

Commerce Act is designed:
          to fix one date on which all causes of
          action, both those in favor of shipper and
          those in favor of carrier, with respect to
          any particular shipment, should be deemed to
          have accrued, so that, in the application of
          the section limiting time for suit, a
          situation would not arise wherein claims in
          favor of one party arising out of a
          particular shipment would be barred and those
          in favor of the other party not be barred.


Pennsylvania R. 

.

     Although the explanation of "accrues" in § 415(e) is similar

to that contained in the corresponding provision of the Commerce

Act, those two provisions rest upon totally different policy

considerations.

0           "Accrual" is now defined in 49 U.S.C. § 11706(g)
which states "[a] claim related to a shipment of property accrues
under this section on delivery or tender of delivery by the
carrier." 49 U.S.C. § 11706 (1982)


                                 26
          The [Commerce Act] is explicit that accrual under § 16(3)(e) is no
          synonymous or mutually interchangeable with collectability or duen
          of the debt and that the point of delivery overrides any conventio
          notion of when an action judicially matures. . . . [C]ongress
          anticipated the multitude of variations in the period of limitatio
          that would result if conventional standards of triggering the peri
          were used and promulgated 16(3)(a) and (e) in order to avoid such
          variation by creating a uniform time of accrual irrespective of wh
          the action could have generally been brought.


South Omaha Terminal Ry. 

.    Different consideration

the conflict is between a telecommunications company and its customer.     It

nonsensical to conclude that a cause of action to collect charges for transm
telephone call accrues when a message is delivered.    Such a rule would allow

sue a customer as soon as the carrier completes a telephone connection even

customer has not refused to pay, and even if the customer has given every in

it would pay upon receipt of an accurate bill.   When a call is completed, th

typically not even billed for the service, and the customer has every right

it will not incur any liability so long as it pays the bill that is expected

future time.

     However, where a customer seeks redress from a telecommunications carri

the improper transmission of a telecommunications signal, it is reasonable t

that the cause of action in favor of the customer does arise when the messag

or tendered.   It is then that the customer reasonably should know of the all

See Central Scott Tel. Co. v. Teleconnect Long Distance Servs. & Sys. Co.,

1317, 1320-21 (S.D. Iowa 1993)0 (the court relied upon the FCC's declaration

only "concerns a carrier's liability to its customers for failure to transm

accordance with its common carrier obligations").    See also Anchorage Tel.

Alascom, Inc., 4 FCC Rcd. 2472 (1989) ("Section 415(e) is concerned with a

liability to its customer for failure to transmit a message . . ."); MCI

0           Citing Williams Telecommunications Group, Inc. v. The Chesapeake
Tel. Cos., 8 FCC Rcd. 1161, ¶ 16 n.35 (1993).


                                27
Telecommunications Corp. v. Pac. Bell Tel. Co., 5 F.C.C. Rcd. 3462 (1990) ("

is inapplicable to MCI's complaints. That Section concerns a carrier's liabi

customers . . .").

     We agree that the limitations period contained in § 415(e) applies to

by the carrier's customer that   allege a breach of a common carrier's obliga

to an action against the customer.    Accordingly, here, the statute of limita

purposes of § 415(a) accrues with "discovery of the right or wrong or of th

which such knowledge is chargeable in law."   Central Scott Tel. Co., 832 F.

MCI's tariff tells us when that occurred.   Under that tariff, "MCI's bills a

upon receipt," however, "[a]mounts not paid within 30 days after the date o

will be considered past due . . . ."   We must give these words their ordinar

See Strite v. McGinnes, 

, 239 (3d Cir.), cert. denied, 379 U.S.

(the words employed are given "their plain and ordinary meaning, except wher

in which they are used renders then a different denotation, or where legal o

words are used and it is clear from their use that the legal or technical me

intended.").   Teleconcepts' obligations became past due 30 days after the d

particular invoice.   It is therefore only then that MCI's cause of action un

accrued, and it is at that point that the two year clock started ticking.

     Moreover, Teleconcepts' duty (both under the tariff and as reflected b
billing practice) is akin to an obligation to make installment payments.    "I

installment contract, a new cause of action arises from the date each paymen

Board of Trustees of the Dist. No. 15 Machinists' Pension Fund v. Kahle Eng

F.3d 852, 857 (3d Cir. 1994) (citing 4 A. Corbin, Corbin on Contracts § 951

"[T]he statute of limitations runs against each installment from the time it

that is, from the time when an action might be brought to recover it."   

Am.Jur.2d: Limitations of Actions § 133).   See also Metromedia
Mountain Assoc., 

, 1380-81 (N.J. 1995) (contract between lessee


                                 28
whereby lessor was to reimburse lessee for lessee's use of an independent c

treated like an installment contract and thus a new cause of action subject

limitations period accrued for each month that lessor failed to reimburse th

Kiamichi Electric Cooperative v. Underwood, 

, 359-60 (Okla. Ct.

(electric cooperative's contract to provide electricity was akin to installm

and thus each monthly installment due constituted a new cause of action with

statute of limitations).
          The period fixed by a statute of limitations begins to run from th
          'accrual of the cause of action.' Since 'cause of action' is so
          uncertain and variable a concept, serious injustice may be done un
          the court uses judicial discretion in applying such a statute in
          case of 'partial' breaches of a single contract. No doubt there i
          much authority for the statement that where separate actions would
          for a series of breaches, the statute operates against each one
          separately as of the time when each one could have been brought,
          that this rule is not affected by the fact that after two or more
          breaches have occurred the plaintiff must join them all in one cau
          of action. Of course, if an action for a first instalment is barr
          by the statute, it can not be properly included in an action for l
          installments that are not yet barred.


Corbin, supra, § 951, at 823-24.

     Here, MCI first accrued a cause of action on December 8, 1989 -- 30 da

date of the November 8, 1989 long distance bills.   Additional causes of act

days after the date of each of MCI's subsequent bills.   MCI could have insti
recover payment on any one bill, or brought an action as they did to recover

all of them.   However, for MCI's action to have been timely as to all of the

have been filed within two years of the date on which a cause of action accr

partial breach.   See Kahle Engineering 

(action barred

unpaid installments which came due prior to six year statute of limitations

; Corbin, supra, § 951, at 823-24.

     Thus, MCI's action is untimely as to the amounts owed in the bills date
1989, November 15, 1989, and December 8, 1989.   MCI's cause of action for t



                                29
accrued on December 8, 1989, December 15, 1989 and January 8, 1990, respecti

the complaint was not filed until January 15, 1992, recovery for those bills

the two year statute of limitations of § 415(a).

     However, MCI's action is timely as to all subsequent bills. Accordingly

maintain its suit for amounts owing on the bills dated December 15, 1989;0 J

1990; January 9, 1990; February 8, 1990; March 8, 1990; and March 17, 1990.

     Accordingly, we reverse the judgment of the district court and remand f

to deduct from its judgment the amount of the bills dated November 8, 1989,

1989, and December 8, 1989 and to recalculate the award of prejudgment inte

accordingly.
                                      E. Attorney's Fees

     Teleconcepts challenges the award of attorney's fees arguing that hours

MCI's counsel were "clearly excessive," since there was no discovery and mos

merely involved the preparation of pleadings.   See Appellant's brief at 32-

     The district court must exercise its informed discretion in awarding at

See Pawlak v. Greenawalt, 

, 977 (3d Cir. 1983), cert. denied, 46

(1984). Thus, our standard of review is a narrow one.      "We can find an abuse

if no reasonable [person] would adopt the district court's view.     If reasona

could differ as to the propriety of the action taken by the trial court, the
said that the trial court abused its discretion." Silberman v. Bogle, 683 F

Cir. 1982) (citation omitted).

     The district court was familiar with the efforts of counsel, and conduc

review of the time that counsel spent working on this case.      The court foun

"actual hours claimed were in fact reasonably expended by counsel."      MCI

Telecommunications Corp. v. Teleconcepts, Inc., No. 92-244, slip op. at 3 (

0
       Suit was instituted two years to the day from the date the cause of a
on this bill.


                                 30
25, 1994).   Teleconcepts does not specify how the district court abused its

its review, and we do not think that any such abuse of discretion occurred.

we affirm the award of attorney's fees. However, in view of our ruling on th

limitations, the district court should, upon remand, make whatever review of

fees it feels warranted and adjust the prior award of fees if the court feel

reduction or adjustment is now appropriate.    We do not, however, take any po

whether the court should make any such adjustment.
                                     F. Third-Party claim

     Finally, Teleconcepts argues that the district court erred in granting

judgment in favor of third-party defendant, Bell.    Our review of this grant

judgment is plenary. See Gulfstream 

.

     Teleconcepts maintains it is entitled to be indemnified for any liabili

MCI because Bell allowed the fraudulent "hacking" to occur by furnishing a d

tone.   Teleconcepts' third-party complaint does not allege the basis for th

court's subject matter jurisdiction, nor does the district court state the b

jurisdiction.   However, since there was no independent basis for subject mat

jurisdiction over that claim, we believe that the district court exercised s

jurisdiction based on the FCC tariff.    See 28 U.S.C. § 1367 (Supp. 1993).0

     Congress codified the judicially created doctrines of pendent and ancil
jurisdiction under the name "Supplemental Jurisdiction" at 28 U.S.C. § 1367.

embodies the jurisdictional standard established in United Mine Workers of A

Gibbs, 

(1966).   See Lyon v. Whisman, 

, 760 (3d Cir.

Sinclair v. Soniform, Inc., 

, 603 (3d Cir. 1991).    Accordingly,

requirements must be satisfied before a federal court may exercise supplemen

jurisdiction.   "The federal claim must have substance sufficient to confer s

0
       Diversity jurisdiction is clearly inapplicable since the amount in co
not exceed $50,000. See 28 U.S.C. §1332 (1988).


                                31
jurisdiction on the court."    

.   The state and federal

derive from a common nucleus of operative facts, and the claims must be such

would ordinarily be expected to be tried in one judicial proceeding.    See i

F.3d at 760.

     We believe that the third party complaint satisfies the prerequisites

28 U.S.C. §§ 1331, and 1337 confer subject matter jurisdiction over MCI's cl

action and Teleconcepts' third-party action both arise out of the fraudulent

activity which purportedly resulted in exorbitant long distance charges.    Mo

and prudent use of judicial resources dictate that these claims be tried in

proceeding.    Accordingly, the third-party action meets the test for suppleme

jurisdiction.

     However, our inquiry does not end there.    Bell argues that the tariff

the Pennsylvania Public Utilities Commission ("P.U.C.") places responsibilit

unauthorized calls upon Teleconcepts.    That tariff provides in pertinent par

COCOT0. . . [s]ervice subscriber is considered as the Customer of Record and

responsible for all rates and charges associated with the service, . . . ."

the third-party complaint therefore turns upon the interpretation and applic

PUC tariff. We must therefore determine if the doctrine of primary jurisdic
          Primary jurisdiction `applies where a claim is originally cognizab
          in the courts, and comes into play whenever enforcement of the cla
          requires resolution of issues which, under a regulatory scheme, h
          been placed within the special competence of an administrative bod
          In contrast, when the legislature provides an agency with 'exclusi
          primary jurisdiction,' it preempts the courts' original jurisdicti
          over the subject matter.


Greate Bay Hotel & Casino v. Tose, 

, 1230 n.5. (3d Cir. 1994) (
omitted).   If a legislature has vested an administrative agency with exclusi

0
          "COCOT" is an acronym for "Customer-Owned Coin-Operated Telephones
parties agree that Teleconcepts is a COCOT within the meaning of that term i
tariff.


                                 32
jurisdiction, that agency is the only forum in which complaints within that

may be brought.    

  Even though the parties have not raised the

exclusive primary jurisdiction, we must determine if the third-party compla

heard by the PUC in the first instance.0    We are mindful of the fact that th

primary jurisdiction:
          is not simply a polite gesture of deference to the agency seeking
          advisory opinion wherein the court is free to ignore the agency's
          determination. Rather, once the court properly refers a matter or
          specific issue to the agency, that agency's determination is bindi
          upon the court and the parties (subject, of course, to appellate
          review through normal channels), and is not subject to collateral
          attack in the pending court proceeding.


Elkin v. Bell Tel. Co. of Pa., 

, 376 (Pa. 1980) (footnotes omitt
                            1. The Statutory Framework of the PUC.

     "The PUC has long been recognized as the appropriate forum for the adju

issues involving the reasonableness, adequacy and sufficiency of public util

Behrend v. Bell Telephone, 

, 347 (Pa. 1968).


            The PUC has the power to 'prescribe as to service and facilities .
            just and reasonable standards. . . to be furnished, imposed, obser
            and followed by any or all public utilities . . .' and upon findi
            . . 'that the service or facilities of any public utility are
            unreasonable, unsafe, inadequate, insufficient . . . ' the PUC 'sh
            determine and prescribe, by regulation or order, the reasonable, s
            adequate, sufficient, service or facilities to be observed, furni
            enforced or employed . . . '



Elkin v. Bell Telephone, 

, 374 (Pa. 1980), see 66 P.S. §§ 1182,

(repealed and replaced by 66 Pa. C.S. §§ 1504, 1505 (1978).    The Pennsylvani

Utility Law requires public utilities to file tariffs with the PUC.     See 66

§ 1302 (Purdon 1979 & Supp. 1995).     These tariffs are binding and dispositiv


0
         Following oral argument we asked the parties to file supplemental bri
issue.


                                  33
rights and liabilities between the customer and the public utility.    See 66

§1303 (Purdon 1979).     The PUC has enforcement power over its tariffs and re

matters that pertain to those tariffs are considered to be within the partic

of the PUC.   See 66 Pa. C.S.A. § 501, et. seq. (Purdon 1979).

     Accordingly, "[t]he PUC has long been recognized as the appropriate for

adjudication of issues involving the reasonableness, adequacy and sufficienc

utility services." 

.    At oral argument, Teleconcepts

it was challenging the reasonableness, adequacy and sufficiency of Bell's t

service, and Bell admitted this point in its supplemental brief to this cour

Supp. Brief at 1-2, 7.    Thus, it is not disputed that the subject matter of

party complaint is within the jurisdiction of the PUC, and that agency is t

forum to resolve the issues raised by that complaint. That determination, ho

necessary to our analysis, is not sufficient to end our inquiry.    Our inquir

focus upon whether resolution of Teleconcepts' claim against Bell requires t

competence of the PUC.
          Courts should not be too hasty in referring a matter to an agency,
          to develop a 'dependence' on the agencies whenever a controversy
          remotely involves some issue falling arguably within the domain o
          agency's 'expertise.' 'Expertise' is no talisman dissolving a cour
          jurisdiction. Accommodation of the judicial and administrative
          functions does not mean abdication of judicial responsibility. . .
             Therefore, where the subject matter is within an agency's
          jurisdiction and where it is a complex matter requiring special
          competence, with which the judge or jury would not or could not be
          familiar, the proper procedure is for the court to refer the matte
          the appropriate agency. . . . Where, on the other hand, the matter
          not one peculiarly within the agency's area of expertise, but is o
          which the courts or jury are equally well-suited to determine, the
          court must not abdicate its responsibility.

.
                             2. The Need for the PUC's Expertise.




                                  34
       As noted above, issues that implicate a utility's tariff are deemed to

special expertise of the PUC. In addition we are guided by Elkin, and DeFra

Western Pa. Water Co., 

, 596 (Pa. 1982). In Elkin, the court hel

allegations that Bell negligently failed to furnish the customer "reasonable

efficient service" with respect to three wide-area telephone service ("WATS"

deliberately refused to furnish plaintiff with adequate directory assistanc

service, and negligently failed to furnish written telephone numbers for pro

customers of plaintiff fell within the PUC's area of expertise.    Elkin, 420

377.

       By contrast, in DeFrancesco the court held that the allegation that fir

plaintiff's property because the city water company negligently failed to ma

water pressure did not fall within the PUC's expertise and thus its primary

The court reasoned:
          The controversy now before us . . . is not one in which the genera
          reasonableness, adequacy or sufficiency of a public utility's serv
          is drawn into question. Resolution of appellant's claims depended
          upon no rule or regulation predicated on the peculiar expertise o
          PUC, no agency policy, no question of service or facilities owed t
          general public, and no particular standard of safety or convenienc
          articulated by the PUC. . . .Rather, . . . . [r]esolving the
          essential question of whether the utility failed to perform its
          mandated duties requires no recondite knowledge or experience and
          falls within the scope of the ordinary business of our courts.

.

       Courts have routinely looked to Elkin and DeFrancesco to determine if

controversy implicated the special competence of the PUC.    See Optimum Imag

Phila. Elec. Co., 

, 556-57 (Pa. Super. Ct. 1991) (allegations th

violated by the substandard and defective supply of electrical power brought

within the primary jurisdiction of the PUC); Ostrov v. I.F.T., Inc., 586 A.2
(Pa. Super. Ct. 1991) (action did not come within the primary jurisdiction o



                                 35
plaintiff did not contend that medical examination provision of self-insura

violated the PUC's rules or regulations governing self-insurance motor carr

other PUC rule or regulation for self insurance)    Schriner v. Pa. Power & L

A.2d 1128, 1130-31 (Pa. Super. Ct. 1985) (citing DeFrancesco the court held

of "stray voltage" depends upon "no rule or regulation predicated upon the p

expertise of the PUC . . ." and thus was not within the primary jurisdiction

Morrow v. Bell Tel. Co. of Pa., 

, 551-52 (Pa. Super. Ct. 1984)

challenge to public utility's rates relating to toll charges and its service

regarding deposits held to be within the primary jurisdiction of the PUC).

     Here, the dispute centers around Bell's performance under its tariff a

technical deficiencies that my have existed in the dial tone generated by it

That complaint may rise or fall on the issue of the manner in which Bell com

obligation under its tariff to provide "reasonable, . . . efficient" service

that can best determine Bell's compliance with that tariff is the PUC. In ad

Teleconcepts' allegation of deficient service transcends the present controv

least potentially, calls into question the adequacy of Bell's service to the

public as Teleconcepts claims that the second dial tone was neither unique t

nor COCOT owners. We must therefore be sensitive to the need for uniformity

consistency in agency policy, which further suggests that the PUC decide the
Teleconcepts' claim initially.   See 

; Ostrov, 586 A.2d

("matters involving the general reasonableness or adequacy of a utility's se

public are within the primary jurisdiction of the [PUC].").
                            3. The Effect of the Relief Sought

     Nevertheless, despite the need for the PUC to determine liability on Te

third-party claim, the PUC is not empowered to award damages, and Teleconce

damages in the nature of indemnification. See 

("the P
authority to award damages").    However, the Pennsylvania Supreme Court has a


                                 36
bifurcated procedure where, as here, a plaintiff sues a public utility base

latter's purported failure to provide adequate, reasonable or sufficient ser

seeks damages as a remedy.    See 

; Ostrov, 586 A.2d

this bifurcated procedure, the issue of liability is transferred to, and ini

by, the PUC.   If necessary, the appropriate trial court thereafter determine

See 

; 

n.3.

     Accordingly, "the doctrine of primary jurisdiction applies where the ad

agency cannot provide a means of complete redress to the complaining party a

dispute involves issues that are clearly better resolved in the first instan

administrative agency charged with regulating the subject matter of the 

.   The doctrine requires a court to transfer an issue that in

administrative expertise to the administrative agency charged with exercisin

discretion.    Richman 

n.3.   "Essentially, the doctrin

workable relationship between the courts and administrative agencies wherein

appropriate circumstances, the courts can have the benefit of the agency's v

within the agency's competence."      

.

     In Optimum 

, the plaintiff sued the Philadelphia Electric

("PECO") alleging that the utility "wrongfully, negligently, carelessly and

reasonable cause delivered, over an extended period of time, unreasonably de
electrical power" to plaintiff's business premises.     The trial court transfe

determination of liability to the PUC. The Pennsylvania Superior Court affi
          [Plaintiff alleges that] the electrical power supplied by PECO
          exceeded the ten percent variation allowed by PECO's tariff filed
          the PUC. In addition, [plaintiff] . . . alleges that the power wi
          which it was supplied was substandard and outside the regulatory
          requirements and that the problem it experienced was not investiga
          with the proper equipment.
                             . . . .
          In response, PECO contends that it at all times provided electrica
          power in compliance with its tariff filed with the PUC and otherwi
          furnished and maintained adequate, efficient, safe and reasonable
          services and facilities to [plaintiff].


                                 37


  The controversy between Teleconcepts and Bell is analogous.

that the doctrine of primary jurisdiction required the district court to uti

bifurcated procedure established for resolving questions of liability where

sought in a matter involving the special expertise of the PUC.   Thus, althou

district court had jurisdiction over the third-party claim, the court erred

the question of liability.   That claim must be transferred to the PUC for s

determination. If the PUC concludes that Teleconcepts is entitled to indemni

Bell, the district court may then make an appropriate award to Teleconcepts.

.

     We are aware that language in some decisions of the United States Supr

our sister Courts of Appeals seems to suggest a contrary result here. For ex

Reiter v. Cooper, 

(1993) the Court stated:


          Referral of the issue to the administrative agency does not depri
          the court of jurisdiction; it has discretion to either retain
          jurisdiction or, if the parties would not be unfairly disadvantage
          to dismiss the case without 

. See also, U.S. v. Philadelphia National Bank, 83 S. Ct.

(comparing primary jurisdiction to a prudential doctrine of abstention and n

primary jurisdiction merely postpones and does not preclude the exercise of

by a federal court), Northwest Airlines, Inc. v. County of Kent, Mich., 114

(1994) (failure to brief primary jurisdiction resulted in waiving considerat

doctrine), Gross v. Baxter Healthcare Corp., 

, 706 (7th Cir. 195

found the parties had waived any consideration of primary jurisdiction and

this respect, primary jurisdiction is quite different from subject matter

jurisdiction[]"), and U.S. v. Henri, 

, 527 (9th Cir. 1987) ("th

primary jurisdiction, despite what the term may imply, does not speak of th
jurisdictional power of the federal courts[]").   However, none of these case


                                38
the issue of the authority of a federal court to adjudicate a matter that a

legislature had placed within the exclusive domain of a state administrative

Accordingly, our analysis here is consistent with the results reached in suc

U.S. v. Western Pacific Railroad, 

, 165 (1956). There, the cour
          [t]he doctrine of primary jurisdiction thus does 'more than prescr
          the mere procedural timetable of the law suit. It is a doctrine
          allocating the law making power over certain aspects' of commercia
          relations. 'It transfers from court to agency the power to determ
          some of the incidents of such 

(emphasis added). See also, Slocum v. Delaware, L. & W. R.

577 (1950), and Pennsylvania Railroad Co. v. Day, 

(1959), an

Hotel and 

.

     The Commonwealth of Pennsylvania has committed the issues raised by Te

claim against Bell to the exclusive jurisdiction of the Pennsylvania Public

Commission and a federal court can not amend state law by exercising supplem

jurisdiction. Indeed, a contrary holding would mean that the federal courts

to decide matters of state law that courts in the affected state lack author

resolve. Since the Supreme Court of Pennsylvania has held that "the Public U

Commission has been vested by the legislature with exclusive original jurisd

of the issues which this suit requires us to resolve,     Behrend v. Bell Tele
A.2d 346, 347 (1968), we must remand to the district court for appropriate p

     Accordingly, we will reverse the district court's grant of summary jud

of Bell and remand so that the district court can transfer the third-party

PUC for a determination of liability.   The district court retains jurisdicti

matter pending the liability determination by the PUC.0

0
          We realize that after the district court disposes of the allocatio
distance charges between MCI and Teleconcepts in accordance with this opinio
will be left with only the third-party claim founded on state law. It is f
court to decide whether to retain supplemental jurisdiction at that point, o
the third-party claim pursuant to 28 U.S.C. § 1367(c)(3).


                               39
                                            III.

     For the reasons stated above, we will affirm in part and reverse in par

judgments of the district court, and remand this case to the district court

proceedings consistent with this opinion.




MCI Telecommunications Corp. v. Teleconcepts, Inc., No. 94-5426.




NYGAARD, Circuit Judge, concurring in part and concurring in the judgment.



          I join the majority's opinion.0   I write separately, however, beca




                               40
the majority's holding with respect to primary jurisdiction is incorrect an

unnecessarily limit the jurisdiction of the federal courts.    Although I agre

majority's decision to apply primary jurisdiction analysis, I do not agree w

in which it conflates that doctrine with the district court's constitutional

subject matter jurisdiction to hear Teleconcepts' third-party claim.

                                              I.

            The majority, recognizing that neither party below raised the issu

nevertheless concludes that "we must . . . determine if the doctrine of pri

jurisdiction applies." Majority typescript at 34 (emphasis added); see 

this proposition on Greate Bay Hotel & Casino v. Tose, 

1994), in which we remarked that "when the legislature provides an agency wi

primary jurisdiction,' it preempts the courts' original jurisdiction over th

matter."    

n.5.   That opinion also stated that we heard the appe

are obliged to examine the subject matter jurisdiction of the district court

1230 n.4.   Essentially, the majority treats dicta from Greate Bay as a hold

state legislature or court, by virtue of conferring "exclusive" primary juri
state administrative agency, divests an Article III federal court of its su

jurisdiction.   That treatment cannot withstand rigorous analysis, and, to th

majority adopts it,0 I believe it errs.

                                              A.

            The majority recognizes that "language in some decisions . . . see

a contrary result here." Majority typescript at 42.    Indeed, a whole host of

for the proposition that primary jurisdiction (exclusive or otherwise) has n
with subject matter jurisdiction. See Reiter v. Cooper, 

, ____,

1213, 1220 (1993) ("Referral of the issue to the administrative agency does

                                  41
the court of jurisdiction; it has discretion to either retain jurisdiction o

parties would not be unfairly disadvantaged, to dismiss the case without pre

General American Tank Car Corp. v. El Dorado Terminal Co., 

, 432

325, 331 (1940) (district court had personal and subject matter jurisdiction

have stayed its hand pending determination of certain issues by the Intersta

Commission); accord Northwest Airlines, Inc. v. County of Kent, Mich., 114

n.10 (1994) (primary jurisdiction, unlike subject matter jurisdiction, is wa

Common Carrier, Inc. v. Baxter Healthcare Corp., 

, 706 (7th Cir.

United States v. Henri, 

, 528 (9th Cir. 1987) (per curiam) (prim

jurisdiction, despite the name, does not go to the jurisdictional power of t

courts) (citing United States v. Bessemer & L.E. R.R., 

, 599 (D

1983)); Oasis Pet. Corp. v. United States Dep't of Energy, 

, 15

Emer. Ct. App. 1983) (citing United States v. Philadelphia Nat'l Bank, 374

Ct. 1715 (1963)).

          The majority acknowledges most of the above cases, but attempts t

them on the rationale that none of those cases "addressed the issue of the a
federal court to adjudicate a matter that a state legislature had placed wit

exclusive domain of a state administrative agency."   Majority typescript at

distinction, that a state legislature's or court's actions may divest the fe

of subject matter jurisdiction where the same action by Congress would not,

by the cases the majority cites.

          In the first case relied on by the majority, United States v. Wes

Co., 

, 

(1956), railroads sued the government in th
Claims to recover differences between the tariff rates they had been paid an

they believed were required on shipments of napalm bombs.   The issue was whe

                               42
tariff for gasoline in drums or the higher tariff for incendiary bombs appli

shipments. Neither party raised the issue of primary jurisdiction in the lo

the Supreme Court, on its own motion, considered the question of whether exc

jurisdiction was vested in the Interstate Commerce Commission.   Notably, the

Court gave for considering the issue sua sponte was comity, not subject matt

jurisdiction:
          Before this Court neither side has questioned the validity of the
          lower court's views [regarding primary jurisdiction]. Nevertheless
          because we regard the maintenance of a proper relationship between
          courts and the Commission in matters affecting transportation pol
          to be of continuing public concern, we have been constrained to
          inquire into this aspect of the decision.

77 S. Ct. at 165.   Its doctrinal discussion of primary jurisdict

likewise not cast in jurisdictional terms:
               The doctrine of primary jurisdiction, like the rule requirin
          exhaustion of administrative remedies, is concerned with promoting
          proper relationships between the courts and administrative agencie
          charged with particular regulatory duties. "Exhaustion" applies wh
          a claim is cognizable in the first instance by an administrative
          agency alone; judicial interference is withheld until the
          administrative process has run its course. "Primary jurisdiction,"
          the other hand, applies where a claim is originally cognizable in
          courts, and comes into play whenever enforcement of the claim requ
          the resolution of issues which, under a regulatory scheme, have be
          placed within the special competence of an administrative body; in
          such a case the judicial process is suspended pending referral of
          issues to the administrative body for its views.

77 S. Ct. at 165 (citing General American Tank Car, 308 U.S a

Ct. at 331).0   I therefore conclude that when the Western Pacific Court spok

transferring "the power" to determine the parties' relations from the court

see majority typescript at 43, it was speaking of a jurisprudential deferen
on administrative rulemaking authority, not subject matter jurisdiction.

                                             B.

                                 43
          Article III of the Constitution defines the outer limits of a fede

court's subject matter jurisdiction. By statute, Congress may choose to gran

short of those limits, for example, by requiring complete rather than minim

or by imposing jurisdictional amounts in diversity cases.   Determining subje

jurisdiction is not a particularly complex task; as the Supreme Court has st

Constitution must have given to the court the capacity to take it, and an a

must have supplied it. . . ." Finley v. United States, 

, 548, 1

2006 (1989) (quoting The Mayor v. Cooper, 

, 252 (1868)). Thus, i

wishes to confer exclusive jurisdiction on a federal administrative agency

district courts of that jurisdiction, it would be within its constitutional

so, although it has not done so in the cases discussed above.

          Under the Supremacy Clause, Congress may likewise confer exclusiv

jurisdiction on a federal court0 or administrative agency and divest the sta

what would otherwise be within their subject matter jurisdiction.   This unre

principle explains the "exclusive" primary jurisdiction of the National Rail

Board found by the Supreme Court in two of the cases the majority relies upo
Pennsylvania R.R. Co. v. Day, 

, 552, 

, 1325 (1959

Delaware, L. & W. R.R. Co., 

, 244, 

, 580 (1950).

          A state legislature may also limit the jurisdiction of its own sta

enacting a statute vesting exclusive primary jurisdiction in a state board o

subject of course to the confines of state law and the due process requirem

Fourteenth Amendment.   See Greate 

& n.5 (dictum); Behre

Tel. Co., 

, 

, 347-48 (1968).   Thus, I have no quarrel
majority's conclusion that a Pennsylvania state court would have no power to

claim.

                                44
                                              C.

            It does not follow, however, that a state may by statutory or deci

restrict the subject matter jurisdiction of the federal courts.    It is axio

because its subject matter jurisdiction can be conferred or withdrawn only

federal court must look only to federal, not state, law to determine that ju

non, even when the substantive right at issue is a creature of the state.

Jacoby, 

, 419 (9th Cir. 1981); Markham v. City of Newport News,

713-16 (4th Cir. 1961).    That a state simply has no power to divest a feder

congressionally conferred subject matter jurisdiction, has been settled law

century.    See, e.g., Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S.

S. Ct. 10, 12 (1909); Land Title & Trust Co. v. Asphalt Co., 

, 19 (

(dictum).    Modern caselaw continues in full accord with the early cases.   S

Brown, Inc., 

, 784 (9th Cir. 1987); Dominion Nat'l Bank v. Olse

108, 116 n.2 (6th Cir. 1985); Beach v. Owens-Corning Fiberglas Corp., 728 F

(7th Cir.), cert. denied, 

, 

(1984); Mullen v. Ac

Co., 

, 975 (8th Cir.) (citing cases), cert. denied, 

101 (1983); Begay v. Kerr-McGee Corp., 

, 1315 (9th Cir. 1982) (

& n.4 (citing cases, quoting Railway Co. v. Whitton

U.S. (13 Wall.) 270, 286 (1871)); Greyhound Lines, Inc. v. Lexington State

Co., 

, 1154-55 (8th Cir. 1979); 

; I

Seafood (USA) Inc., 

, 285-86 (D. Del. 1990) (Roth, J.) ("a s

that creates a remedy or type of proceeding cannot narrow the jurisdiction o

courts") (quoting Land Title & 

); Codos v. National Di
Corp., 

, 77-78 (E.D.N.Y. 1989); Kanouse v. Westwood Obstetri

Gynecological Assocs., 

, 129 (D.N.J. 1981) (Brotman, J.).

                                 45
            Moreover, this inviolability of federal subject matter jurisdictio

when the substantive right at issue is created solely by state law and is en

before a state administrative agency.    See 

(exclusive

state workers' compensation fund); Beach, 

(subject matter juri

even though state law purports to vest exclusive jurisdiction in Industrial

Board); 

(workers' compensation system); Liberty M

v. K.A.T., Inc., 

, 984-85 (N.D. Ind. 1994) (failure to exha

administrative remedies); Jones v. National Union Fire Ins. Co., 664 F. Sup

(N.D. Ind. 1987) (Industrial Disputes Board).

            Recent opinions of this court have been somewhat less rigorous and

their analysis of subject matter jurisdiction than the caselaw set forth abo

nevertheless in basic accord with it.    In Edelson v. Soricelli, 

1979), the issue was "whether a federal court may entertain a Pennsylvania m

malpractice claim under the diversity statute, 28 U.S.C. § 1332, before the

initially taken recourse to the state Arbitration Panels for Health Care. .

132.   Such recourse was "a condition precedent to entry into the state judic

   In the two cases consolidated on appeal, "the district courts

although claimants made the necessary averments for subject matter jurisdic

federal courts, exercise of diversity jurisdiction would be improper until

arbitrated under the state arbitration procedure." 

(emphasis add

omitted).    We affirmed, notwithstanding the ruling of one of the district co

Pennsylvania arbitration panel had exclusive primary jurisdiction.    

later case of Hamilton v. Roth, 

(3d Cir. 1980
prisoner sued prison doctors for cruel and unusual punishment under the Eig

As a pendent claim under the doctrine of United Mine Workers v. Gibbs, 383

                                 46
Ct. 1130 (1966), he also brought a claim for malpractice, but without submit

Pennsylvania malpractice arbitration panel.   

  In the conclud

of our opinion, we did state that "the district court was without subject ma

jurisdiction to hear Hamilton's related medical malpractice claim."    624 F.2

This statement was not a part of the holding, but was at most an unguarded c

words, because earlier in the opinion we stated:
          There is no question that we have power under Gibbs to consider th
          claim. But Gibbs also requires that the federal court determine
          pendent claims in accordance with the applicable state law. Here,
          applicable state law requires that a malpractice claim be submitte
          arbitration before being considered in court. Thus, while a feder
          court has the power under the Gibbs test of pendent jurisdiction
          hear a malpractice claim, it may exercise this power only after th
          claim has been submitted to arbitration. We have so held first in
          Edelson and now here.

n.6.

          Taken together in the light of the abundant caselaw reviewed above

Hamilton teach that, while the district court had subject matter jurisdicti

Teleconcepts third-party claim, it should have refrained from exercising it

decision in the proceedings before the PUC.   See Cheyney State College Facu
Hufstedler, 

, 736 (3d Cir. 1983) (likening primary jurisdiction

(quoting Philadelphia Nat'l 

, 83 S. Ct. at 1736).   This

because the exclusive primary jurisdiction of the PUC deprived the district

subject matter jurisdiction conferred on it by the Constitution and Congress

the PUC's exclusive primary jurisdiction is part of the substantive law of P

law which we are bound to apply under the Erie doctrine.0   See Edelson, 610

          Many courts have followed this approach, refraining from exercisin

pending completion of appropriate administrative proceedings.    In Webb, for

court opined that, rather than dismiss for lack of subject matter jurisdicti

                               47
          [i]t is more accurate to characterize the reason for the dismissal
          the complaint as the court's belief that the complaint, as a matte
          law, did not state a claim upon which relief could be granted beca
          the exclusive remedy provision of [the state workers' compensation
          statute] barred a common law negligence 

. Likewise, in Beach, the court opined:
               Despite our ruling that the district court had jurisdiction
          entertain this suit, we affirm the entry of summary judgment beca
          Indiana has eliminated the cause of action asserted by the plainti
          The Indiana law vesting exclusive jurisdiction over disputes betwe
          employees and their employers in the disputes board operates to c
          state court doors to the plaintiffs. The state's denial of a judic
          remedy in this case is a denial of the substantive right asserted
          the plaintiffs. An employee or his representatives or kin may mak
          claim other than before the Industrial Disputes Board. Accordingl
          the state courts have no jurisdiction over the plaintiffs' claims,
          the plaintiffs therefore have no claim to press in this federal
          action, which depends entirely upon state 

(citing Woods v. Interstate Realty Co., 

, 538,

1237 (1949); 

).   Accord 

dismissed for failure to state any claim upon which the state court could gr

("Erie doctrine does not extend to matters of j

Erie held not to require nonexercise of jurisdiction under circumstances 

(case dismissed for failure to state a claim when relief

obtained only from state industrial board); 

(de

exercise of jurisdiction pending completion of medical malpractice panel rev

                                            D.

          That brings me to the scope of the holding of Greate Bay, because

holds as the majority believes it does, our Internal Operating Procedure 9.1

follow it, regardless of whether I consider it jurisprudentially sound. In t

casino sued a gambler to enforce a settlement agreement concerning his gamin

gambler counterclaimed, alleging that the casino allowed him to gamble altho


                               48
was intoxicated.   On the counterclaim, the jury found for the casino, and th

filed a motion for a new trial, which was denied.    He then appealed that rul

casino cross-appealed, arguing that the district court did not have jurisdi

exclusive jurisdiction to order restitution was vested with the Casino Cont

and that, therefore, "the district court should not have exercised jurisdic

(emphases added).

          We affirmed the denial of the new trial.   

  The Gr

stated in a footnote that it was "obliged to examine the subject matter juri

the district court," 

n.4, and it engaged in a detailed analysis

primary jurisdiction, holding that jurisdiction was not exclusive.     

that determination, the panel did not need to, and indeed did not, engage in

of the effect that a finding of exclusive primary jurisdiction would have o

court's power to grant restitution or even to hear the case.   Once the court

that the Commission did not have exclusive primary jurisdiction, it determin

motion for new trial was properly denied by the district court.

          I therefore conclude that footnote 4 of Greate Bay, which speaks
district court's subject matter jurisdiction, is dictum and should not be fo

To the extent the majority relies on it for its holding, it places more wei

Bay than it will bear, placing Greate Bay in conflict with our opinions in

Hamilton, and the Supreme Court's opinion in Reiter and the cases discussed

                                              E.

          In sum, I conclude that, although the district court has subject

jurisdiction over Teleconcepts' third-party claim, the exclusive primary ju
the PUC is part of the substantive law of Pennsylvania.   Accordingly, to the



                                49
Pennsylvania state court is unable to grant relief at this time, an Erie-bo

court likewise may not ordinarily grant it.

                                              II.

                                              A.

          I use "ordinarily" to refer to the posture in which this type of c

comes before a district court--the situation in which one or more of the par

the issue of exclusive primary jurisdiction as a bar to relief in the federa

such a case, the court should abstain from exercising its jurisdiction pendi

of proceedings before the administrative agency.     This case, however, is dif

exclusive primary jurisdiction was not litigated in the district court.

          If exclusive primary jurisdiction did divest the district court's

jurisdiction, the majority would be undeniably correct in reaching the issue

for the first time on appeal.   As I have already shown, subject matter juris

implicated; thus, we would not normally reach the issue at this stage of the

                                              B.

          In primary jurisdiction cases, however, we have discretion to con
own motion whether that doctrine applies.     See Northwest Airlines, 114 S. C

Western Pacific, 352 U.S. at 

.     In Western Pacific, the

reached that issue because of the public concern over the proper relationshi

courts and the ICC.   352 U.S. at 

.    There, the courts' i

of public tariffs had the potential to differ significantly from those of th

charged with their regulation, with the potential of causing uncertainty and

harm to either shippers or railroads.   On the other hand, in Northwest Airli
which the Court did not consider the doctrine of primary jurisdiction, at is

rates a county airport authority charged airlines.

                                50
          This case, like Western Pacific, involves public tariffs, which ap

in favor of the majority's decision to examine the primary jurisdiction issu

Discretion, of course, is exactly that--a choice of decisions, not a rule o

should not be inferred that every case involving a tariff requires the same

this case, however, I agree with the majority's decision to reach the issue

primary jurisdiction (though not with its jurisdictional rationale).0

2         I therefore concur in part, and concur in the judgment.




                               51