Appeal, No. 248, Jan. T., 1952, from judgment of Court of Common Pleas No. 5 of Philadelphia County, March T., 1946, No. 739, in case of The Bell Telephone Company of Pennsylvania v. Philadelphia Warwick Company. Judgment affirmed.
John B. H. Carter, with him Benjamin O. Frick and John B. King, for appellant.
James H. Booser, with him Bernard Eskin, McNees, Wallace & Nurick, Jefferson C. Barnhart, Harry H. Frank and Wolf, Block, Schorr & Solis-Cohen, for appellee.
William S. Livengood, Livengood & Nissley, Samuel D. Goodis, Folz, Bard, Kamsler, Goodis & Greenfield, Clyde A. Armstrong, Kenneth G. Jackson and Thorp, Reed & Armstrong filed a brief for Pennsylvania Hotels Association et al., amici curiae.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
On a former appeal of this case by defendant, following plaintiff's filing of its statement of claim, we held (355 Pa. 637, 50 A.2d 684) that the court of common pleas had jurisdiction of the cause of action. Thereupon defendant filed its answer, including new matter and a counterclaim. After an unsuccessful attempt to obtain judgment on the pleadings, plaintiff filed a reply. Trial was had before the court below sitting without a jury. The facts are neither complicated nor in dispute and they may be stated as follows:
Under a written agreement dated June 19, 1942, between the plaintiff, The Bell Telephone Company of Pennsylvania, and the defendant, Philadelphia Warwick Company, the former installed on the latter's hotel premises a semi-public branch exchange system and connecting
facilities for guests; for the use and maintenance of the equipment defendant was to pay a monthly charge. Acting as plaintiffs agent, defendant was to collect the established telephone rates for all local and toll messages sent from the hotel premises, and to receive as compensation from plaintiff a commission of 60% of the gross receipts from local messages and 20% from toll messages, not exceed 25 cents on any one message. Plaintiff had on file with the Public Utility Commission tariffs specifying its rates and regulations for intrastate service and with the Federal Communications Commission tariffs specifying its rates and regulations for interstate and foreign service, and the contract provided that the facilities and service furnished by plaintiff were subject to its established regulations and schedules of rates. 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.
Defendant, in conformity with what was apparently a prevailing practice among hotels, made and collected surcharges from its guests for telephone service on all toll messages whether intrastate, interstate or foreign; it billed such charges without distinguishing them from plaintiff's lawful tariff rates, but instead included them in a lump-sum charge constituting the total charge for the call. Since such additional charges were not provided for in the tariffs filed by plaintiff, the Pennsylvania Public Utility Commission, on July 21, 1942, notified it that the charges thus made by any hotel on calls placed by guests over semi-public branch exchanges constituted a violation of the tariffs and agency agreements of the ...