Appeal from decree of Court of Common Pleas of Allegheny County, April T., 1968, No. 1001, in case of Kenneth W. Behrend and Behrend and Aronson v. The Bell Telephone Company of Pennsylvania and The Reuben H. Donnelley Corporation.
Mark B. Aronson, with him Behrend & Aronson, for appellants.
B. A. Karlowitz, with him J. Kent Culley, Henry S. Pool, and Patterson, Crawford, Arensberg & Dunn, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen concurs in the result. Mr. Justice Musmanno dissents.
This is an appeal from the Decree of the lower Court sustaining preliminary objections of the defendants, The Bell Telephone Company of Pennsylvania (hereinafter called "Bell") and The Reuben H. Donnelley Corporation (hereinafter called "Donnelley"), and dismissing plaintiffs' complaint in this equity action.
On January 23, 1968, Kenneth W. Behrend, an attorney at law, and Behrend and Aronson, a law partnership, filed a complaint in equity against Bell and Donnelley to compel defendants to republish or amend the 1967 white pages and yellow pages of the telephone directory for the City of Pittsburgh and vicinity. Basically, the complaint avers that in April 1967, Behrend requested Bell to change his telephone listing to that of "Kenneth W. Behrend and Mark B. Aronson, and Behrend and Aronson"; and that in September 1967, Bell issued to its subscribers a directory which did not contain the name, business address and telephone number of Behrend. It further alleged that Donnelley published the yellow pages of the directory and that in December 1967, the yellow pages omitted the name, business address and telephone number of Behrend.
Appellants prayed that Bell and Donnelley cause the name, business address and telephone number of Behrend to be inserted in the proper place in each and every copy of the white (September directory) and in the yellow pages of the December 1967 telephone directory, or, as an alternative, the defendants cause the name, business address and telephone number of Behrend to be inserted in a listing of errors and omissions, to be distributed to all persons and entities who received the 1967 telephone directories.
Preliminary objections were filed to the complaint; these alleged that equity had no original jurisdiction
since the matter falls within the exclusive jurisdiction of the Pennsylvania Public Utility Commission.
Section 401 of the Public Utility Law, Act of May 28, 1937, P. L. 1053, § 401, 66 P.S. § 1171, provides that: "Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities, and shall make all such . . . changes, alterations, substitutions, extensions, and improvements . . . as shall be necessary or proper for the accommodation, convenience, and safety of its patrons . . . and the public. . . . Such service and facilities shall be in conformity with the regulations and orders of the commission. . . ."
Furthermore, § 20 of the Public Utility Law, supra, art. I, § 2, as amended, defines "service" as follows: "'Service' is used in this act in its broadest and most inclusive sense, and includes any and all acts done, rendered, or performed, and any and all things furnished or supplied, and any and all facilities used, furnished, or supplied by public utilities . . . in the performance of ...