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KALINSKY v. LONG ISLAND LIGHTING CO.

February 11, 1980

HOWARD KALINSKY, Plaintiff, against LONG ISLAND LIGHTING COMPANY, Defendant.


The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

This action involves plaintiff's motion for a preliminary injunction, and defendant's motions for a preliminary injunction, for an order to dismiss, and for an order designating this case a "Long Island" case under the local rules and transferring the proceedings to Westbury. Plaintiff invokes jurisdiction under 28 U.S.C. §§ 1331 and 1343.

 FACTS

 Some four years ago the Long Island Lighting Company ("Lilco") sold to, and installed in, the Howard Kalinsky household electrical space heating, allegedly representing to Mr. Kalinsky that electrical heating was the least expensive way to heat his home. About the same time (e.g., January 20, 1976) the Public Service Commission of the State of New York ("PSC") ordered Lilco to submit a rate proposal pricing electricity by time of use ("peak-load pricing") for residential customers consuming large quantities of electricity. According to defendant, on October 1, 1976 it notified by mail all those residential consumers that Lilco anticipated would be affected by use of peak-load pricing including the Kalinsky family. After public hearings, an order was issued by the PSC on September 1, 1977 approving peak-load pricing *fn1" for residential customers whose consumption exceeded 45,000 kilowatt hours ("KWH") in a past twelve-month period. The Kalinsky household constituted such a customer. Lilco claims during the week of January 23, 1978 all customers consuming more than 45,000 KWH (including plaintiff) were notified they would be placed on peak-load pricing rates beginning in the fall of 1978.

 After affirmation of rates based on peak-load pricing by the New York Court of Appeals in Council of Retail Merchants v. PSC, 45 N.Y.2d 661, 412 N.Y.S.2d 358, 384 N.E.2d 1282 (1978), Lilco mailed (on May 18, 1979) the affected consumers notice that their bills would soon reflect the new rate structure. Again, according to Lilco, Mr. Kalinsky was sent such notice. Mr. Kalinsky thereafter requested that his account be reviewed in order to confirm whether or not it qualified for inclusion in the new structure. Confirmation by Lilco that Mr. Kalinsky's account did so qualify was mailed on June 5, 1979; this letter further requested that plaintiff contact Lilco to schedule an appointment for installation of the necessary metering equipment a request to which plaintiff failed to respond. During the summer of 1979 Lilco personnel attempted to install the new meter, but were denied entry to plaintiff's home. Another request, and another refusal, occurred on October 17 and October 23, 1979, respectively. The October 23 refusal was made by phone, and when Lilco sought to discuss the rate with plaintiff he refused to do even this.

 Finally, plaintiff was notified his continued refusal to allow Lilco to install the new meter was a violation of PSC orders and would result in termination of electric service for failure to obey Lilco's tariff. Plaintiff again refused. On October 24, 1979, plaintiff was sent a final disconnect notice which gave five days written notice of Lilco's intention to disconnect plaintiff's service. Lilco so informed the PSC. Plaintiff then brought this action.

 Plaintiff's complaint seeks (i) a declaratory judgment pursuant to 28 U.S.C. § 2201 declaring that plaintiff is not covered by, or is exempt from, the peak-load pricing rate structure and (ii) injunctive relief restraining defendant from disconnecting plaintiff's electrical service. The issues of law outlined in plaintiff's motion papers and defendant's papers in opposition are quite unique. In essence, plaintiff claims the constitutional rights of which he is being denied include deprivation of property without due process of law and invasion of his right to privacy. Plaintiff further asserts violations of his civil rights under 42 U.S.C. § 1983.

 Defendant argues: (i) federal courts do not have jurisdiction over plaintiff's claim under the Johnson Act, 28 U.S.C. § 1342; (ii) the action should be dismissed for failure to state a claim upon which relief can be granted; (iii) the action should be dismissed for lack of a necessary party the PSC; (iv) the action is improperly before this Court under the doctrine of primary administrative jurisdiction; (v) it does not satisfy jurisdictional requirements under 28 U.S.C. § 1331 that plaintiff anticipates defendant's answer may raise a federal question; and (vi) the action should be transferred to the Long Island Courthouse pursuant to local rule Chapter 4, Rule 1.

 DISCUSSION

 I

 Defendant's contention that this Court does not have jurisdiction over plaintiff's claim under the Johnson Act, 28 U.S.C. § 1342, questions this Court's power to adjudicate plaintiff's claim. The Johnson Act, in full, provides:

 
The District Courts shall not enjoin, suspend or restrain the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a State administrative agency or a rate-making body of a State political subdivision, where:
 
(1) Jurisdiction is based solely on diversity of citizenship or repugnance of the order to the ...

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