Bell Telephone Company of Pennsylvania v. Philadelphia Warwick Co.
| Decision Date | 28 January 1947 |
| Docket Number | 3387 |
| Citation | 355 Pa. 637,50 A.2d 684 |
| Parties | Bell Telephone Company of Pennsylvania, Appellant, v. Philadelphia Warwick Company |
| Court | Pennsylvania Supreme Court |
Argued January 6, 1947
Appeal, No. 213, Jan. T., 1946, from order of C.P. No. 5 Phila. Co., March T., 1946, No. 739, in case of The Bell Telephone Company of Pennsylvania v. Philadelphia Warwick Company. Order reversed.
Petition and rule by defendant questioning jurisdiction of court.
Order entered dismissing action for lack of jurisdiction, opinion by SMITH, P.J. Plaintiff appealed.
The order is reversed with a procedendo.
Benjamin O. Frick , with him J. B. H. Carter , for appellant.
Harry H. Frank , with him Wolf, Block, Schorr & Solis-Cohen, Bernard Eskin and McNees, Wallace & Nurick , for appellee.
Before MAXEY, C.J., DREW, LINN, STERN, PATTERSON, STEARNE and JONES, JJ.
The denial by the court below of jurisdiction over the subject-matter of this action springs from a not uncommon confusion between the question of jurisdiction and that of the plaintiff's right to recover.
Plaintiff, The Bell Telephone Company of Pennsylvania, on June 19, 1942, entered into a written agreement with defendant, Philadelphia Warwick Company, which operates the Warwick Hotel in Philadelphia. The contract provided for the installation by plaintiff on defendant's premises of a semi-public branch exchange system consisting of a switchboard and other equipment, for the use and maintenance of which defendant was to pay a monthly charge. Defendant, acting as plaintiff's agent, was to collect for it the established public telephone rate of ten cents for each local message from the hotel premises and the established charges for toll messages, and was to receive from plaintiff a commission of 60% of the gross receipts from local messages and 20% from toll messages, not to exceed 25 cents on any one message. The contract was to continue in force from month to month until terminated by ten days' notice in writing from either party to the other. If was not filed with the Pennsylvania Public Utility Commission, but plaintiff had on file with the Commission the tariffs specifying local and toll message rates.
Defendant, in conformity with the practice of other hotels, made and collected surcharges from its guests for telephone service; such surcharges were not provided for in the tariffs filed by plaintiff, and the Pennsylvania Public Utility Commission notified plaintiff that surcharges billed by hotels on telephone calls placed by guests over semi-public branch exchanges constituted a violation of its tariffs, and directed it to institute the necessary measures to compel a discontinuance of such practice. Plaintiff informed defendant of this order of the Commission, but apparently to no avail in spite of the fact that the Federal Communications Commission also held that the practice of hotels in making and collecting surcharges not provided for in plaintiff's filed tariffs was improper as to interstate calls over semipublic branch exchanges. On February 12, 1944, plaintiff gave defendant notice that their contract would be terminated at midnight February 23, 1944, notice on March 1, 1944, that plaintiff's filed tariffs provided for the collection of its established charges only and not for any surcharges by hotels, and notice on April 3, 1944, that plaintiff would, after April 15, 1944, make commission payments only to hotels which in writing had advised plaintiff of their compliance with the tariff provisions by discontinuing their practice of making surcharges. Defendant did not respond to these notices and, since February 23, 1944, no contract for the payment of commissions has been in force between the parties.
The present action is to recover the sum of $5,670.28, being an amount retained by defendant as commissions out of collections which it had made for toll messages from the telephone stations on its premises from April 15, 1944, to July 3, 1945. It is plaintiff's contention that during that period defendant was illegally collecting surcharges in addition to the rates in effect under the filed tariffs and that after the termination of the contract between the parties on February 24, 1944, defendant had no right to any commissions whatever.
After plaintiff filed its statement of claim defendant presented a petition under the Act of March 5, 1925, P.L. 23, challenging the jurisdiction of the court on the ground that the commissions properly payable to defendant and the contract between the parties in reference thereto entered into the question of rates, [1] that the subject involved in the suit was therefore within the exclusive jurisdiction of the Pennsylvania Public Utility Commission, that plaintiff should have filed with the Commission its contract with defendant [2] and subsequently its cancellation of that contract, [3] and that, until the Commission had determined the portion of the collections to which plaintiff was entitled as diminished by proper compensation for defendant's services as plaintiff's agent, no suit to recover such collections could be brought in the Court of Common Pleas. The court upheld this contention and made absolute defendant's rule to show cause why the action should not be dismissed for lack of jurisdiction. From this order plaintiff appeals.
The ruling of the court was erroneous. We are not concerned here with the merits of the controversy. Plaintiff argues that the right of defendant to commissions was at all times a matter solely of contract between the parties and did not involve any determination of rates by the Public Utility Commission, that it was suing only to recover the amount due it under the schedule of the filed rates which were legally binding unless and until set aside or modified by the Commission, [4] that the Commission had power to prescribe rates prospectively only, not retroactively, and could not require it to file tariffs covering past periods, [5] and that it was incumbent upon the defendant to turn the collections over to plaintiff and if subsequently the Commission took any action giving support to defendant's claim the latter's remedy would then be by way of reparation. [6] Assuming, however, though without deciding, that defendant is right in its contention that its contract with plaintiff should have been filed by the latter, that the rate of commissions to which it was entitled had never actually been established or approved by the Commission, that plaintiff's cancellation of the contract had never been so approved, and that plaintiff could not recover in this action until such approval had been obtained, nevertheless the jurisdiction of the court over the present cause of action would not be affected by these considerations or any of them.
In Lackawanna County v. James , 296 Pa. 225, 145 A. 817, which was a suit by the county on official bonds of its treasurer to recover sums for which he should have accounted, he challenged the jurisdiction and contended that he could not be held to liability unless and until the amounts due by him had been ascertained on settlement of his accounts by the county controller. But it was held that the court had jurisdiction of the cause of action.
In Skelton v. Lower Merion Township , 298 Pa. 471, 148 A. 846, the treasurer of the township sued to recover from it moneys claimed to be due him as commissions on collections. The township insisted that no recovery could be had unless and until the claim had been submitted to and allowed by the township auditors, and accordingly it pleaded lack of jurisdiction. But the court said (p. 473, A. p. 846): It is of interest to note that when this case was remanded and pleadings were filed by the parties it was held (Skelton v. Lower Merion Township , 318 Pa. 356, 178 A. 387) that plaintiff was not entitled to recover, because he was obliged, as defendant had claimed, to have the amount of his commissions determined by the township auditors and their action was final.
In Nippon Ki-Ito Kaisha, Ltd. v. Ewing-Thomas Corporation , 313 Pa. 442, 170 A. 286, which was a suit to recover the purchase price of merchandise, the contract between the parties provided for arbitration in New York. It was held that the court had jurisdiction to decide whether or not the parties could be required to proceed to such arbitration; that it might ultimately determine it had no such power did not deprive it of jurisdiction over the cause of action.
In Main Cleaners & Dyers, Inc. v. Columbia Super Cleaners, Inc., 332 Pa. 71, 2 A.2d 750, it was held that, although the Act of June 2, 1937, P.L. 1198, provided that in any case involving a labor dispute the court should not have the power to issue injunctions, this did not deprive the court of jurisdiction over an action in which plaintiff was seeking to obtain such an injunction. The court had jurisdiction in general to grant injunctive relief and therefore could proceed to the determination of the cause although it might subsequently dismiss plaintiff's bill on the ground that it had no power to grant the relief sought in the particular case.
In Zerbe Township School District v. Thomas , 353 Pa 162, 165, 44 A.2d 566, 568, it was said: "Even if a plaintiff have no standing to bring his...
To continue reading
Request your trial