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KENNETH W. BEHREND ET AL. v. BELL TELEPHONE COMPANY PENNSYLVANIA (09/27/76)

decided: September 27, 1976.

KENNETH W. BEHREND ET AL.
v.
THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, A CORPORATION, APPELLANT, AND THE REUBEN H. DONNELLEY CORPORATION, A CORPORATION. KENNETH W. BEHREND V. THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, A CORPORATION, APPELLANT



COUNSEL

Richard B. Tucker, Jr., Donald P. Eriksen, Tucker, Arensberg & Ferguson, Pittsburgh, Jerome J. Shestack, Schnader, Harrison, Segal & Lewis, Philadelphia, for appellant.

James E. Beasley, Jeffrey M. Stopford, Philadelphia, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Jacobs

[ 242 Pa. Super. Page 53]

We are here concerned with an individual's recovery of compensatory and punitive damages against the Bell Telephone Company of Pennsylvania, hereinafter referred to as Bell, for the omission of his name from both the telephone directories distributed by Bell and the directory assistance operators' lists, and for the disruption of his telephone service. We will reverse and remand for a new trial.

Kenneth W. Behrend, the appellee, was an attorney practicing in Allegheny County in partnership with another attorney, Mark B. Aronson, at all times relevant to this appeal. In 1966 he began to experience difficulty with his business telephone which he testified continued until the time of trial. Initially, appellee discovered that whenever all the lines into his office were in use, an incoming caller, instead of hearing a busy signal, would be informed by a voice that the number had been disconnected. This situation was corrected after a few months and a settlement between appellee and Bell was reached and a release from liability executed by appellee. However, a host of telephone related problems continued to plague appellee. These consisted of such things as false busy signals, noise or static on the telephone so loud as to interfere with conversation, the discovery of other parties or offices on the firm's lines, a recurrence of the false information that the line was disconnected or out of service given to incoming callers, no dial tone accompanied by inability to use the telephone to call out, failure of the phone to ring in the office although the caller

[ 242 Pa. Super. Page 54]

    would hear a ring, and having the entire switchboard light up and flash on and off thus preventing incoming calls from being completed. These problems occurred irregularly but frequently. Complaints were repeatedly made to Bell, to which Bell responded by sending employees to repair appellee's phone service, but the problems persisted.

In addition to the disruptions in service, appellee's name, as an individual business listing designating his status as an attorney, was omitted from both the white and yellow pages*fn1 of Bell's directories in 1968. This omission occurred shortly after appellee and Mark Aronson established a partnership, apparently as a result of an attempt by appellee's office manager, Mrs. Behrend, to have an additional listing for the law firm, Behrend and Aronson, included in the directories. Although the firm name, Behrend & Aronson, was accurately listed, as was Mr. Aronson's individual business listing, the separate listing for Kenneth W. Behrend, attorney, was omitted both in the white pages and under the classified section for attorneys in the yellow pages. Furthermore, appellee's individual name with the designation "attorney" was omitted from the lists used by the directory assistance operators in April 1967. The omission from the directory assistance operators' lists was discovered at the end of 1967 and corrected immediately. However, when the printed directories were distributed in December of 1967 and the omission of appellee's individual business listing was discovered and brought to Bell's attention, Bell asserted that the omission could not be corrected until the new directories were distributed the next year. Bell refused to republish all the Pittsburgh directories or to mail gummed errata strips to all Pittsburgh

[ 242 Pa. Super. Page 55]

    subscribers to be pasted in the telephone book.*fn2 Appellee's individual business listing did appear correctly in the next directory published and his other listings, that of his firm and his residence, were correctly listed throughout.

Appellee initiated this action with two complaints, one in trespass and one in assumpsit, which were later consolidated for trial. Both negligence and breach of contract are alleged in connection with (1) Bell's failure to print appellee's individual business listing, (a) in the white pages, or (b) under the classified heading "attorneys" in the yellow pages in the 1968 directories; (2) omission of appellee's name from the directory assistance operators' lists from April 1967 until the end of that year; and (3) failure to provide adequate telephone service from 1966 to the present time. Appellee further alleges that Bell's various failures and omissions were intentional and malicious and constitute intentional interference with appellee's business. As a result of the faulty service provided by Bell, as well as its failure to correct its service upon notice, loss of profits and business opportunities are asserted, and both compensatory and punitive damages demanded.

The liability and damages issues were presented separately to a jury. At the conclusion of the liability section, the jury returned special findings by answering 15 interrogatories indicating that Bell was liable to appellee on every count. After hearing the damage portion of the trial, the jury returned a verdict of $100,000 compensatory damages and $50,000 punitive damages. This appeal followed.

[ 242 Pa. Super. Page 56]

I

Appellant Bell first maintains that the Public Utility Commission (hereinafter PUC) has exclusive jurisdiction over the matters raised in this appeal.*fn3 The basis for this assertion lies in appellant's conceptualization of the essential issue in the case as being a question of the reasonableness and adequacy of the telephone service provided by Bell. To substantiate its contention, appellant points to a number of sections in the Public Utility Law which set forth the obligation of utility companies to provide service and the corresponding power of the PUC to ensure that the service is performed according to the standard envisioned in the act.*fn4 The act

[ 242 Pa. Super. Page 57]

    enables the PUC to promulgate regulations structuring the operation of the public utility companies to best conform to the public interest.*fn5 Under the authority of the act, the PUC can establish controls over public utilities in those matters affecting public service. Where appropriate injunctions can be obtained,*fn6 or fines can be imposed,*fn7 which can be enforced in the Commonwealth Court.*fn8 PUC v. W. J. Dillner Transfer Co., 191 Pa. Super. 136, 155 A.2d 429, allocatur refused, 191 Pa. Super. xxv (1959); York Telephone & Telegraph Co. v. PUC, 181 Pa. Super. 11, 121 A.2d 605 (1956). None of these sections, however, provide for recovery of damages where injury or loss is incurred as a result of the acts or omissions of a public utility. Because the case before us alleges a loss attributable to a public utility and seeks recovery, it does not come within the provisions of these sections.

The extent of the PUC's jurisdiction has been clearly outlined by the courts of this Commonwealth in the course of a long series of opinions. In Lansdale Borough v. Philadelphia Electric Co., 403 Pa. 647, 650-51,

[ 242 Pa. Super. Page 58170]

A.2d 565, 567 (1961) the Supreme Court, after an extensive review of prior cases concerning PUC jurisdiction, concluded: "Initial jurisdiction in matters concerning the relationship between public utilities and the public is in the PUC -- not in the courts. It has been so held involving rates, service, rules of service, extension and expansion, hazard to public safety due to use of utility facilities, installation of utility facilities, location of utility facilities, obtaining, alerting, dissolving, abandoning, selling or transferring any right, power, privilege, service, franchise or property and rights to serve particular territory." (Footnotes omitted). The exclusive regulatory jurisdiction conferred on the PUC in these areas permits evaluation and control of utility activities as they affect public service. Behrend v. Bell Telephone Co., 431 Pa. 63, 243 A.2d 346 (1968); Chester County v. Philadelphia Electric Co., 420 Pa. 422, 218 A.2d 331 (1966); Colonial Products Co. v. PUC, 188 Pa. Super. 163, 146 A.2d 657 (1958); Lansdale Borough v. Philadelphia Electric Co., supra. No other entity can interfere with the commission's performance of its function by making additional or different requirements of a utility, Blythe Township Municipal Authority v. PUC, 199 Pa. Super. 334, 185 A.2d 628 (1962), or by conducting an independent appraisal of a utility's service to the public. Einhorn v. Philadelphia Electric Co., 410 Pa. 630, 190 A.2d 569 (1963).

The question of utility policy as it affects the public is not now before this court, nor is the determination of the reasonableness or adequacy of Bell's methods of providing service. This is an action for damages and the fact that the regulation of utility service is exclusively in the PUC's jurisdiction does not remove from the court's jurisdiction an action for damages based on a failure of service, any more than the PUC's power to promulgate safety regulations prohibits the courts from hearing a claim for personal injuries resulting from unsafe

[ 242 Pa. Super. Page 59]

    utility equipment. See, e. g., Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959); Frangis v. Duquesne Light Co., 232 Pa. Super. 420, 335 A.2d 796, allocatur refused, 232 Pa. Super. xxxi (1975). The commission's jurisdiction is limited to regulatory matters essential to utility service. Felix v. PUC, 187 Pa. Super. 578, 146 A.2d 347, allocatur refused, 187 Pa. Super. xxviii (1958); Meyerson v. New York Telephone Co., 65 Misc.2d 693, 318 N.Y.S.2d 900 (1971). The courts retain jurisdiction of a suit for damages based on negligence or breach of contract wherein a utility's performance of its legally imposed ...


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