Felix v. Pennsylvania Public Utility Commission

• Decision Date: 14 November 1958
• Citation: 187 Pa.Super. 578,146 A.2d 347
• Parties: , 26 P.U.R.3d 393 David H. H. FELIX, Appellant, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellee, and The Bell Telephone Company of Pennsylvania, Intervening Appellee.
• Court: Pennsylvania Superior Court

Page 347

146 A.2d 347

187 Pa.Super. 578, 26 P.U.R.3d 393

David H. H. FELIX, Appellant, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellee and The Bell Telephone Company of Pennsylvania, Intervening Appellee.

Superior Court of Pennsylvania.

Nov. 14, 1958.

Application for Allocatur Denied Feb. 2, 1959.

David H. H. Felix, Felix & Felix, Philadelphia, for appellant.

Ralph S. Sapp, Asst. Counsel for Pa. Public Utility Com., Pittsburgh, Thomas M. Kerrigan, Counsel for Pa. Public Utility Com., Harrisburg, for appellee.

John B. King, E. Everett Mather, Jr., Peter F. Pugliese, Philadelphia, for intervening appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN and WATKINS, JJ.

WRIGHT, Judge.

On August 20, 1957, David H. H. Felix filed with the Pennsylvania Public Utility Commission a complaint against the Bell Telephone Company of Pennsylvania requesting that the rates charged by the Company for listings in its classified directory be declared a matter within the jurisdiction of, and subject to regulation by, the Commission. On April 7, 1958, after hearing, the Commission dismissed the complaint for lack of jurisdiction. Felix has appealed.

Appellant, a lawyer engaged in active practice in the City of Philadelphia, is a subscriber to the Company's telephone service. His name appears in the Company's alphabetical directory, and is also listed free of charge in standard type in the Company's classified directory under the classification 'Lawyers'. Appellant has as associates two other lawyers, namely, Myron E. Barg and Kathryn M. Renzulli, who regularly make use of appellant's telephone. Their names are listed in the Company's alphabetical directory in return for an additional monthly payment by appellant as a part of his telephone service contract. The Company's rates and practices for alphabetical directory listings are covered by the tariff filed by it with the Commission, which tariff expressly excludes listings in the classified directory. The names of Barg and Renzulli are also listed in the Company's classified directory under the classification 'Lawyers', by virtue of a separate contract unrelated to the Company's tariffs, and not by virtue of appellant's telephone service contract. For some years the charge made by the Company for such additional listings in its classified directory was $1 per month each. This charge was subsequently changed, first to 50cents and later to 75cents. On June 18, 1957, appellant was notified that the charge was to be raised to $1 per month, to which increase appellant took exception.

The statement of the question involved, as submitted by appellant, is as follows: 'Where the Pennsylvania Public Utility Commission has declared the listing, in light face type, of business and professional subscribers to the business service of the Bell Telephone Company of Pennsylvania to be a public service and hence, subject to its jurisdiction, should not the word 'subscriber' include all listings properly submitted by the 'subscriber'?' The Company's counterstatement of the question involved is as follows: 'Where a telephone company regularly publishes the listing of a suscriber to its business service in its Alphabetical Directory and also publishes such listing in its Classified Directory, is the charge made under special contract to list in standard type in the Classified Directory other persons who are not themselves subscribers to telephone service within the jurisdiction of the Pennsylvania Public Utility Commission?' The Commission's counterstatement of the question involved is as follows: 'Where the Bell Telephone Company of Pennsylvania provides all subscribers with a listing in its alphabetical directory, furnishes certain business and professional subscribers with a free listing in its classified directory, and charges such business and professional subscribers under separate contract for classified directory listing of non-subscribers under the subscriber's telephone number, is not the charge and contract for nonsubscriber listing of such private nature as to be outside the jurisdiction of the Pennsylvania Public Utility Commission?'

In appellant's words, 'The question presented by this appeal is narrow. 'Narrow' in the sense that this court is called upon to decide only one point of law: 'Who or what constitutes a subscriber to telephone service?'' He argues that the 'subscriber * * * is the person, persons, organization, organizations and members thereof who use the particular telephone'. Since the rates charged for additional listings in the alphabetical directory are regulated, appellant contends that additional listings in the classified directory should also come within the Commission's jurisdiction and the charges therefor should be regulated. The answer of the Company and the Commission is that the classified directory is an advertising project competing with other advertising media, that the Public Utility Law ¹ does not contemplate control of such business, and that the Commission should not take jurisdiction where the question is concerned with standard type listings of non-subscribers in the classified directory.

'The area of administrative activity is not boundless; the commission's power is statutory; and the legislative grant of power to act in any particular case must be clear'. West Penn Railways Co. v. Pa. P. U. C., 135 Pa.Super. 89, 4 A.2d 545, 549. The Commission is limited in its jurisdiction to the regulation of public service as distinguished from private service. Borough of Ambridge v. P. S. C., 108 Pa.Super. 298, 165 A. 47. In 1943, the Commission held in Steerman v. Bell Telephone Company of Pennsylvania, 24 Pa. P. U. C. 316, that the undertaking of a telephone company to publish under a descriptive heading in its classified directory the names of all business and professional subscribers, who desire it, 'is a dedication to that part of the telephone using public', and to such limited extent constitutes a public service. The Steerman case involved the request of a Philadelphia lawyer that the Company list the names of two of his associates, not subscribers, in its classified directory at the same rate charged for additional listings in the alphabetical directory. The Commission stated that the Company was under no obligation 'to supply complainant's 'associates' with the same service as that furnished the complainant because the associates...