Pilot Industries v. Southern Bell Tel. & Tel. Co.

• Decision Date: 08 November 1979
• Docket Number: Civ. A. No. 78-575.
• Citation: Pilot Industries v. Southern Bell Tel. & Tel. Co., 495 F. Supp. 356 (D. S.C. 1979)
• Parties: PILOT INDUSTRIES, Plaintiff, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Defendant.
• Court: U.S. District Court — District of South Carolina

495 F. Supp. 356

PILOT INDUSTRIES, Plaintiff, v.SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Defendant.

Civ. A. No. 78-575.

United States District Court, D. South Carolina, Columbia Division.

November 8, 1979.

J. Wesley Drawdy, Columbia, S. C., for plaintiff.

Stephen G. Morrison, Nelson, Mullins, Grier & Scarborough, Columbia, S. C., for defendant.

ORDER

CHAPMAN, District Judge.

This matter is before the Court on motion of the defendant for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.The motion is made upon the ground that there is no genuine issue of any material fact, and that defendant is entitled to judgment as a matter of law.

The plaintiff is a South Carolina corporation, and the defendant is a New York corporation.Plaintiff, invoking this court's diversity jurisdiction, filed suit against Southern Bell alleging lost business opportunities and other losses as a result of interruptions in its telephone service and errors in its telephone directory listings.

Originally, plaintiff's complaint sounded in both contract and tort.On August 23, 1978, this Court granted defendant's motion to strike from the complaint all language sounding in tort.That Order stated in part, "it is obvious that the complaint in this action is grounded upon contract and that allegations as to negligence, carelessness, willfulness and wantonness are immaterial and unnecessary."At the October 30, 1979, hearing, however, the Court advised the parties that, after reading the memoranda and cases submitted in connection with the summary judgment motion, it determined that gross negligence, willfulness, or wantonness would support a verdict, converting what appeared to be a contract action into a tort action.For this reason, any allegations of gross negligence, willfulness, and wantonness contained in the original complaint are by this Order reinstated and the Order of August 23, 1978, is amended accordingly.

The following facts are not disputed.Plaintiff was engaged in the business of franchising automotive reconditioning facilities.Sales were generated as the result of national newspaper advertising.Potential customers, pursuant to these ads would communicate their interest in plaintiff's franchise by calling the company's toll-free number.This toll-free number, commonly called a WATS (Wide Area Telecommunications Service) line, was also offered by plaintiff as a service to its franchisees to help solve any business problems they might be experiencing.

Plaintiff's telephone problems began when it moved its business office from 3650 Bluff Road to 1955 Bluff Road in Columbia, South Carolina.Several weeks before the planned move, plaintiff's manager notified defendant's business office of the impending move.Plaintiff requested a change in telephone service, to be effective September 23, 1977, the date chosen for the move.Initially, plaintiff was informed that the business' phone numbers, both WATS and local lines, would remain the same; however, two days before the move, defendant informed plaintiff that the numbers would have to be changed because plaintiff's new location would be served out of a different central office.Plaintiff had relied on defendant's earlier representation that the numbers would not be changed, and had contracted for ads in a number of out-of-town newspapers urging potential customers to call their toll-free number.After some discussion, the defendant agreed that the WATS numbers could be preserved, and for several months defendant waived an additional charge for this service to allow plaintiff time to correct its advertising, stationery, and other business forms that had also been printed in contemplation of the move.

During the week prior to the move, defendant sent a representative to plaintiff's new location to take inventory of the equipment needed to complete the change in service.Plans were made for the installation to begin on September 22, the day preceding the move.On that day, the Southern Bell installer arrived at the new location and discovered that he did not have the proper equipment.The following day, the day of the move, the installer returned and was still without the necessary equipment.Although phones were not serving the plaintiff's new location, telephone service was still operating at the old location, where plaintiff had instructed an employee to remain to answer all calls.The following day, Saturday, September 24, an installer returned with another employee to continue work on the installation of the phone system.Service was still operating at the old location.It was on this Saturday that plaintiff's officers decided to cancel certain newspaper advertisements that had been scheduled to run the following day.Installation activities resumed on Sunday, September 25, and continued until September 28.Telephone service at the old location was completely operative until September 27.

Plaintiff's new location is served by a total of five lines: two in—WATS, one out—WATS, and two local lines.The in—WATS and local lines are routed through a 24-hour answering service during non-business hours.On September 28, local service to the new location was working, but plaintiff's employees heard static on the lines.There were not, at this time or later, any problems with the local lines.The out—WATS line was fully operative on this date and caused no further problems.Plaintiff's problems were solely with the in—WATS lines.

On September 28, plaintiff received its first call on the in—WATS line at its new location.From September 28 until the first week in November, the in—WATS line functioned sporadically.The numerous problems that plaintiff was experiencing with the in—WATS line were reported to defendant, and defendant responded to these reports on October 12, 17, 18, and 31.Defendant's employees were unable to determine precisely what the difficulty was.From the time of installation in late September and early October, all lines except the in—WATS were working properly.On November 1, 1977, a faulty jack was reported at the answering service.Plaintiff admits that its phone problems ceased on November 2, after repairs were made to the answering service jack.Plaintiff claims it experienced trouble with the lines for a total of 41 days.

Plaintiff also claims business losses as a result of defendant's failure to list the name of plaintiff as "Professional Auto Clean Systems,"("PACS") in the white pages and in the yellow pages of the 1978 directory.The white and yellow pages deletions are related, and were apparently the result of a misunderstanding between the parties.The plaintiff, Pilot Industries, was properly listed in the 1978 directory.The directory dispute arises solely out of the failure of the defendant to list plaintiff as Professional Auto Clean Systems, in addition to Pilot Industries.

As early as 1976, plaintiff was conducting its business under the additional listing of Professional Auto Clean Systemsat 1434 Ellerbe Street in Columbia.From November 3 until December 30, 1976, plaintiff also maintained a listing under the name Pilot Industries on Forest Drive.On December 30, 1976, plaintiff directed defendant to disconnect service to the Forest Drive location, and did not request referral of calls to the Ellerbe Street location.The result was that from December 30, 1976 until March 25, 1977, Pilot Industries ceased to exist on the records of Southern Bell.On March 25, 1977, plaintiff Pilot requested service at 3650 Bluff Road.At this time, plaintiff did not request an additional listing for Professional Auto Clean Systems; according to Southern Bell's records, this office was apparently still operating at the Ellerbe Street location.

On April 19, 1977, plaintiff requested that the Ellerbe Street service be disconnected, and requested that all calls to that location be referred to Pilot Industries at the Bluff Road location.No request was made to re-list plaintiff under the name Professional Auto Clean Systems.A recording referring all Ellerbe Street calls to the Bluff Road location was to continue until January 28, 1978, the effective date of the new 1978 directory.At no time after the Professional Auto Clean Systems number was disconnected in April, 1977, did plaintiff request a new 1977 listing for Professional Auto Clean Systems.The defendant had been instructed to refer all calls to PACS's disconnected number, which still appeared in the 1977 directory, to the Pilot Industries number on Bluff Road.

When defendant was preparing and planning the 1978 directory, it contacted Pilot about new advertising that it might want to appear in the new directory.It was during this time that the yellow pages dispute arose.

On October 3, 1977, defendant's sales representative visited plaintiff's office.He brought with him the "Directory Advertising Order" form that enumerated the listings for Professional Auto Clean Systems in the yellow pages of the 1977 directory.During the visit, the parties referred to this form to ascertain exactly what kind of advertising Professional Auto Clean Systems was currently running in the 1977 directory.In determining the advertising that PACS desired to run in the 1978 directory, certain current (1977) ads that appeared on the form were marked through and thus cancelled.The form indicates that the only advertising ordered was an ad that was to run at no charge because of a printer's error in the ad in the 1977 directory.

The mistake in the yellow pages for 1977 arose out of the following undisputed facts appearing on the record.Plaintiff was listed in the 1977 directory as Pilot Industries and as Professional Auto Clean Systems.Professional Auto Clean Systems was listed at the Ellerbe Street location.This listing appeared in the white pages and in the yellow pages.The yellow pages listings for PACS were included under two separate categories: "Automotive...