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IRVING ELKIN v. BELL TELEPHONE COMPANY PENNSYLVANIA (04/19/77)

decided: April 19, 1977.

IRVING ELKIN, ASSIGNEE OF STUDIO PHOTOGRAPHERS, INC. OF PENNSYLVANIA
v.
THE BELL TELEPHONE COMPANY OF PENNSYLVANIA, APPELLANT



Appeal from the Order dated March 30, 1976, of the Court of Common Pleas, Civil Action, Law, of Montgomery County, at No. 70-04699 of 1971.

COUNSEL

Jerome J. Shestack, Philadelphia, with him James D. Crawford, Philadelphia, for appellant.

Jack A. Rounick, Norristown, with him Michael Brodie, Philadelphia, and Emanuel A. Bertin, Norristown, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion.

Author: Jacobs

[ 247 Pa. Super. Page 506]

The Bell Telephone Company of Pennsylvania has appealed from the order of the lower court refusing its motion for summary judgment.*fn1 Bell contends that there are no remaining issues of fact which the lower court has jurisdiction to decide. For the reasons developed below, we reverse.

A brief exposition of the facts is necessary for a full understanding of the issues and arguments on this appeal. Appellee's assignor, Studio Photographers, Inc. of Pennsylvania, instituted this action on December 7, 1971, by filing a

[ 247 Pa. Super. Page 507]

    complaint containing four counts. Count One sought compensatory and punitive damages, including a refund of telephone charges previously paid, for Bell's alleged negligent failure to furnish Studio adequate telephone service with respect to three wide-area telephone service lines. Count Two sought compensatory and punitive damages in connection with Bell's alleged negligent and/or intentional refusal to furnish Studio with adequate directory assistance service. Both counts further accused Bell of "willful, malicious and deliberate conduct" with respect to the wrongs therein alleged. Studio's third and fourth counts sought compensatory damages for Bell's alleged negligent failure to return two lists of names submitted by Studio to Bell's directory assistance service in April, 1966 and December, 1968.

Bell filed preliminary objections to the complaint challenging the court's jurisdiction and moving for a more specific complaint. The lower court entered the following order:

"AND NOW, this 12th day of June, 1972, after argument before the court en banc and consideration of briefs filed, proceedings in this matter are stayed until there is a determination of standards for the services involved by the Pennsylvania Public Utility Commission in accordance with Section 412 of the Public Utility Law (66 P.S. 1182)."*fn2

[ 247 Pa. Super. Page 508]

On July 6, 1972, Studio commenced a proceeding before the Pennsylvania Public Utility Commission, hereinafter referred to as P.U.C., alleging Bell's failure to provide adequate telephone and directory assistance services. A copy of the complaint in trespass was attached to its complaint to the P.U.C. After conducting evidentiary hearings, the P.U.C., by order adopted August 20, 1974, dismissed Studio's complaint on the grounds that Studio had failed to substantiate its allegations and that Bell had, ...


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