PENNSYLVANIA PUBLIC UTILITY COMMISSION Anthony Jiles, ES-1564 v. Global Tel*Link Corporation; C-2008-2081566 [40 Pa.B. 4226]
[Saturday, July 24, 2010]BEFORE THE
PENNSYLVANIA PUBLIC UTILITY COMMISSIONAnthony Jiles, ES-1564 : : v. : C-2008-2081566 : Global Tel*Link Corporation : Initial Decision Before
David A. Salapa
Administrative Law JudgeHistory of the Proceeding
This decision grants the motion to dismiss the complaint that Anthony Jiles (Complainant) filed with the Pennsylvania Public Utility Commission (Commission) on December 23, 2008 against Global Tel*Link Corporation (Respondent). A complete procedural history of this case is set forth in Administrative Law Judge (ALJ) Louis G. Cocheres' Prehearing Order No. 1, dated June 25, 2009.
On December 23, 2008, the Complainant filed a formal complaint with the Commission against the Respondent. The Complainant alleged: 1) that the Respondent was violating the Telecommunications Act of 1996 and the Public Utility Code; 2) that the Respondent was violating fair trade practices; 3) that the Respondent was violating the Clayton Act; 4) that the Respondent was violating Anti-Kickback Laws; 5) that the Respondent was in violation of forced monopolized purchases; 6) that the Complainant and his family were being deprived by the Respondent of their constitutional right to equal protection; 7) that the Respondent charged higher telephone rates than rates charged to the public; 8) that, when the Complainant bought prepaid phone time, he was paying double taxes; 9) that, by virtue of the Respondent's contract with the Department of Corrections (DOC), the Respondent had a monopoly on providing prisoner telephone service in violation of the Telecommunications Act of 1996 and the Public Utility Code; 10) that the rates charged to the inmates exceeded the cost of providing adequate service; 11) that the DOC received a $3.00 kickback from the cost of the calls; 12) that the kickback was an incentive to interrupt or cut off the calls and forced the inmate to call again and to incur another surcharge; 13) that the Complainant's family and friends were consumers; 14) that the Respondent, as the sole provider of inmate long distance and local phone service, was violating the Telecommunications Act of 1996 and the Pennsylvania Unfair Trade Practices and Consumer Protection Law; 15) that the contract between the Respondent and the DOC violated federal and state law because inmates and their friends and family could only use the Respondent to communicate; 16) that the Respondent refuses to reimburse the Complainant for disconnected or interrupted calls; 17) that the Respondent does not improve the system in response to his complaints; 18) that the Respondent's system played messages which interrupted the calls and prevented conversations; 19) that inmate calls were wrongly disconnected which caused the inmate to place the calls again; 20) that the Complainant's friends and family suffered losses due to being unable to use any other long distance carrier and having calls interrupted or disconnected; and 21) that friends and family who were not able to use any other long distance provider experienced forced monopolized purchases. For relief, the Complainant requested: 1) that other long distance providers be allowed to offer competitive long distance service to his friends and family; 2) that the Complainant be reimbursed for disconnected and/or interrupted calls made after August 2007; and 3) that future rates be regulated by the Commission and made lower than present rates.
On January 20, 2009, the Respondent filed an answer to the complaint and preliminary objections. The answer denied the allegations set forth in the complaint and asserted that the Commission lacked subject matter jurisdiction over many of the issues raised in the complaint. The preliminary objections alleged: 1) that the claims about the Equal Protection Clause, lack of competitive alternatives and monitoring and/or interruption of calls failed to state a claim upon which relief could be granted; 2) that the Complainant (as a non-attorney) was not permitted to represent anyone except himself; 3) that the Commonwealth Court of Pennsylvania had already rejected assertions that a lack of competitive alternatives for inmates violated Federal or State law; 4) that the Commission lacked the jurisdiction to interpret the contract between DOC and the Respondent; 5) that the Commission lacked the jurisdiction to fix rates for interexchange competitive carrier inmate services; 6) that the Respondent was a certificated interexchange carrier; 7) that expedient resolution of the objections was in the public interest; and 8) that requiring hearings would result in the unnecessary expenditure of time and resources of the Commission, DOC and the Respondent. The Respondent requested that the Commission dismiss the complaint based on the Complainant's failure to state a cause of action and lack of subject matter jurisdiction.
On February 2, 2009, the Complainant filed a response to the Respondent's preliminary objections, along with several other documents. The responses to the Respondent's preliminary objections denied the assertions in the preliminary objections and renewed the Complainant's requests for relief.
On May 22, 2009, the Respondent filed a motion to compel answers to interrogatories pursuant to 52 Pa. Code § 5.342(g). Attached to the motion to compel is a copy of the interrogatories. The interrogatories request that the Complainant provide the date, time and number called of all the calls he alleges were improperly disconnected, why the Complainant believes the calls were improperly disconnected and the refund the Complainant is seeking for each disconnected call. The interrogatories also request that the Complainant identify all the documents and witnesses he plans to call at hearing.
The motion alleged: 1) that the Respondent's interrogatories were within the scope of permissible discovery; 2) that responses were due on May 18, 2009; 3) that neither objections nor responses had been served; 4) that the interrogatories were all directed to the Complainant's allegations of inadequate service; 5) that the Complainant's allegations of inadequate service were insufficient to enable the Respondent to prepare for the hearing; 6) that researching the Complainant's call records starting in August 2007 was an unreasonable burden; 7) that the Respondent's interrogatories were not promulgated in bad faith and did not cause an unreasonable burden to the Complainant; 8) that the Complainant should not be permitted to use his complaint to force the Respondent to research its records in order to understand his allegations; and 9) that the Complainant should be able to produce facts to substantiate his allegations. The Respondent requested that the Commission order the Complainant to respond to the Respondent's interrogatories.
On June 25, 2009, ALJ Cocheres issued Prehearing Order No. 1. In his Prehearing Order No. 1, ALJ Cocheres sustained most of the Respondent's preliminary objections. However, Prehearing Order No. 1 denied the preliminary objections regarding improperly disconnected calls and ordered the matter set for hearing on the issues of improperly disconnected calls and any refunds that may be owed to the Complainant and any penalties that may be assessed against the Respondent for inadequate or unreasonable service.
With regard to the Respondent's motion to compel answers to interrogatories, ALJ Cocheres granted the Respondent's motion and directed the Complainant to answer the Respondent's interrogatories on or before July 23, 2009. ALJ Cocheres cautioned the Complainant that if he failed to provide full and complete answers to the Respondent's interrogatories, the presiding officer would be authorized to dismiss the complaint. (Prehearing Order No. 1, pg. 11)
On November 13, 2009, the Respondent filed a motion to dismiss the Complainant's complaint. The motion alleged that the Complainant had failed to provide answers to the Respondent's interrogatories. The motion argues that the Complainant's failure to provide answers to its interrogatories violates both Prehearing Order No. 1 and Commission regulations. The motion requests that the Commission dismiss the complaint with prejudice.
On November 18, 2009, the Respondent filed an amended certificate of service. The cover letter accompanying the amended certificate of service states that the mailing label for the Complainant was incorrect and that the Respondent was reserving the motion to dismiss the Complainant's complaint.
On December 3, 2009, the Respondent filed a letter advising the Commission that the Complainant had been released from the State Correctional Institution at Huntingdon. The letter states that the Respondent had been able to effect service on the Complainant in the past at the Minsec Community Correctional Facility in Philadelphia. However, when the Respondent served the motion to dismiss the Complainant's complaint on the Complainant at the Philadelphia address, it was returned as undeliverable. When the Respondent contacted the Minsec facility, it advised the Respondent that the Complainant no longer resided there and would not provide a forwarding address.
This case has been assigned to me as motion judge. As of the date of this order, the Respondent has not advised me that the Complainant has provided full and complete answers to the Respondent's interrogatories. As of the date of this order, the Complainant has not provided the Commission with a current address. For the reasons set forth below, I will dismiss the complaint.
Discussion
The Commission regulations at 52 Pa. Code §§ 5.371 and 5.372 govern sanctions for failure to comply with the Commission's discovery regulations. Those sections read as follows:
5.371. Sanctions—general.
(a) The Commission or the presiding officer may, on motion, make an appropriate order if one of the following occurs:
(1) A party fails to appear, answer, file sufficient answers, file objections, make a designation or otherwise respond to discovery requests, as required under this subchapter.
(2) A party deponent or an officer or managing agent of a party refuses to obey or induces another to refuse to obey an order of a presiding officer respecting discovery, or induces another not to appear.
(b) A motion for sanctions may be answered within 5 days of service or, in the alternative, the motion may be answered orally at a hearing if a timely hearing has been scheduled within the same 5-day period.
(c) The presiding officer will rule on the motion as soon as practicable. The motion should be decided within 20 days of its presentation.
(d) A failure to act described in subsection (a) may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order.
§ 5.372. Sanctions—types.
(a) The presiding officer, when acting under § 5.371 (relating to sanctions-general) may make one of the following:
(1) An order that the matters regarding which the questions were asked, the character or description of the thing or land, the contents of the paper, or other designated fact shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the party from introducing in evidence designated documents, things or testimony.
(3) An order striking out pleadings or parts thereof, staying further proceedings until the order is obeyed, or entering a judgment against the disobedient party or individual advising the disobedience.
In this case, the Respondent requests that the Commission dismiss the Complainant's complaint because he has failed to provide responses to the Respondent's interrogatories. In his Prehearing Order No. 1, issued June 25, 2009, ALJ Cocheres directed the Complainant to answer the Respondent's interrogatories on or before July 23, 2009. ALJ Cocheres cautioned the Complainant that if he failed to provide full and complete answers to the Respondent's interrogatories, the presiding officer would be authorized to dismiss the complaint. (Prehearing Order No. 1, pg. 11) The Complainant has failed to comply with Prehearing Order No. 1 and has failed to provide any explanation or excuse for his failure to comply with Prehearing Order No. 1.
The Commission has dismissed a complaint without a hearing when the complainant corporation failed to comply with the presiding officer's order to have counsel file a notice of appearance by a date certain. Snyderville Community Development Corporation v. Philadelphia Gas Works, Docket No. C-20055032, (Order entered July 31, 2006). In Snyderville, the Commission stated that ''An ALJ's Orders must be complied with, and such a lack of compliance presents a sufficient basis to dismiss the Complaint without a hearing.''
Recently, in Application of Santos E. Pineda, Docket No. A-2009-2126367 (Initial decision issued May 19, 2010), ALJ Cynthia Williams Fordham dismissed a protest where the protestant failed to comply with her order directing the protestant to answer the interrogatories of the applicant. ALJ Fordham held that it was appropriate to dismiss the protest where the protestant had not answered the interrogatories, did not answer the applicant's motion for sanctions and did not provide any explanation for its failure to comply with her order. A similar outcome is warranted in this proceeding.
The usual practice is that, if a party fails to comply with an order granting a motion to compel, the opposing party may file a motion for sanctions. Here the Respondent filed a motion for sanctions in the form of a motion to dismiss on November 13, 2009 and has attempted to serve that motion on the Complainant. The Respondent has been unsuccessful in serving the motion to dismiss.
The Complainant has a duty, pursuant to 52 Pa. Code § 1.53(d), to inform the Commission promptly of changes to his current address. The Complainant has had at least six months since his release from either the State Correctional Institution at Huntingdon or the Minsec Community Correctional Facility in Philadelphia to inform the Commission of his current address but has failed to do so. The Complainant's failure to provide this information in violation of Commission regulations serves as an alternate basis for dismissing his complaint.
Finally, the Complainant has not contacted the Commission, ALJ Cocheres or me regarding the status of his case. The Complainant has taken no action to prosecute his claims or pursue litigation. I conclude that the Complainant's conduct in this case is obstructive to the orderly conduct of the proceeding and contrary to the public interest. Neither the Commission nor the Respondent should be obligated to waste any more time, energy, or money attempting to locate the Complainant in order to either serve a copy of the motion to dismiss on him or to schedule a hearing.
In Banks, et. al. v. Verizon Pennsylvania, Inc., Docket Nos. C-20055229, C-20055230, C-20055234, C-20055236, C-20055242, C-20055245, C-20055249, C-20055251, C-20055252, C-20055253, C-20055254, and C-20055255 (Order entered June 9, 2008), the Commission adopted the initial decision of ALJ Wayne L. Weismandel closing the proceedings without hearing where the complainants had not contacted the Commission in more than two years, had taken no steps to prosecute their claims or pursue litigation and failed to respond to correspondence from ALJ Weismandel stating that their complaints would be deemed withdrawn if they failed to respond to the correspondence. ALJ Weismandel ruled that the complainants' conduct was contrary to efficient use of the administrative adjudicatory process and directed that the complaints be deemed withdrawn and the proceedings closed. I agree with ALJ Weismandel's reasoning and conclude that it is appropriate under the circumstances to dismiss the Complainant's complaint.
The Complainant has failed to comply with a Commission order by failing to provide answers to the Respondent's interrogatories. In addition, the Complainant has failed to comply with 52 Pa. Code § 1.53(d) by failing to provide the Commission with his current address. Finally, the Complainant has not contacted the Commission or taken any further action to prosecute his claims or pursue litigation. For all these reasons, I conclude that it is appropriate to dismiss the complaint. I will direct that a copy of this initial decision be published in the Pennsylvania Bulletin in order to serve the Complainant by publication pursuant to 52 Pa. Code § 1.53(e).
Conclusions of Law
1. The Commission has jurisdiction over the parties and subject matter in this proceeding.
2. A party's failure to answer, file sufficient answers, file objections, make a designation or otherwise respond to discovery requests, as required may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order. 52 Pa. Code § 5.371.
3. The presiding officer, when acting under 52 Pa. Code § 5.371, may enter a judgment against the disobedient party or individual advising the disobedience. 52 Pa. Code § 5.372(3).
4. The Commission can dismiss a complaint without a hearing when the party fails to comply with the presiding officer's order.
5. A party has a duty to inform the Commission promptly of changes to his current address. 52 Pa. Code § 1.53(d).
Order
Therefore,
It Is Ordered That:
1. The motion of Global Tel*Link Corporation to dismiss the complaint at C-2008-2081566 is granted.
2. The complaint of Anthony Jiles, ES-1564 at Docket No. C-2008-2081566 against Global Tel*Link Corporation is dismissed with prejudice for his failure to answer interrogatories as directed by Prehearing Order No. 1, dated June 25, 2009, and his failure to comply with the Commission's regulations governing discovery.
3. The complaint of Anthony Jiles, ES-1564 at Docket No. C-2008-2081566 against Global Tel*Link Corporation is dismissed with prejudice for his failure to inform the Commission of changes to his current address in violation of 52 Pa. Code § 1.53(d).
4. The complaint of Anthony Jiles, ES-1564 at Docket No. C-2008-2081566 against Global Tel*Link Corporation is dismissed with prejudice for his failure to prosecute his claims and his obstructive conduct.
5. The Secretary of the Commission serve a copy of this initial decision on Anthony Jiles, ES-1564 by publication, pursuant to 52 Pa. Code § 1.53(e), by causing a copy of this initial decision to be published in the Pennsylvania Bulletin.
6. The record at Docket No. C-2008-2080485 is marked closed.
DAVID A. SALAPA,
Administrative Law Judge[Pa.B. Doc. No. 10-1378. Filed for public inspection July 23, 2010, 9:00 a.m.]
