Appeal from the Order of the Court of Common Pleas of Blair County, in case of Warner-CCC, Inc. v. City of Altoona, William C. Stouffer, Travis B. Young, Eugene J. Duncan, Thomas W. Byrne and William L. Cochran, as Mayor and Members of City Council of the City of Altoona, respectively, and Edward G. Cessna, Trustee ad litem for the Joint Community Action Council of Blair County, Dorothy B. Dmytryshak, Pauline A. Bowser, Edward G. Cessna and Richard D. Kaylor, Intervenors, No. 3090 Equity.
Marion D. Patterson, Jr., with him Richard A. Behrens, and Patterson, Every, Routch, Black & Behrens, for appellant.
Paul S. Foreman, with him N. John Casanave, for appellees.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Blatt. President Judge Bowman joins in this dissent.
[ 30 Pa. Commw. Page 565]
Section 1014 of The Third Class City Code, Act of June 23, 1931, P.L. 932, as amended, 53 P.S. § 36014, provides that ordinances become effective 10 days after passage unless otherwise provided. Sections 1050 through 1059, 53 P.S. §§ 36050-36059 provide that during this 10 day period 100 qualified electors may request the city clerk to prepare a petition to be held in his office for signatures of qualified electors requesting the city council to reconsider the ordinance. If a number equal to at least 20% of the entire vote cast for all candidates for mayor at the last preceding municipal election sign the petition before 10 p.m. on the tenth day, the city council must reconsider the ordinance and if it is not entirely repealed it shall be submitted for a referendum vote in accordance with the election code.
One exception to the 10 day rule is provided in Section 1057, 53 P.S. § 36057:
No franchise or consent to occupy the public streets, highways, or other places in any city of the third class shall be given or granted to any person or persons, railroad, railway, gas, water, light, telephone or telegraph company, or to any public utility corporation, except by ordinance, and no ordinance for such purpose shall go into effect before thirty days after it has been filed with the Public Utility Commission.
Section 1058, 53 P.S. § 36058, requires petitions of protest of Section 1057 ordinances be prepared and presented under the procedures provided in Sections 1050-1056 except this is to be done within the 30 day period after the ordinance has been filed with the Public Utility Commission.
The question presented by the instant appeal is whether electors protesting the passage of an ordinance
[ 30 Pa. Commw. Page 566]
granting a franchise to occupy the public streets to a cable television corporation have 30 days under Section 1057 or come under the 10 day restriction of Section 1052. The trial court held that the 30 day provision applied. We disagree and reverse.
The ordinance in question was passed on February 3, 1976. On February 24, 1976 a written request containing 142 signatures was presented to the city clerk to prepare a referendum petition. On February 26, 1976, 23 days after its passage and 2 days after the request for the preparation of a protest petition,*fn1 a copy of the ordinance was filed with the Public Utility Commission by the City Solicitor. The ordinance was received by the Public Utility Commission on February 27, 1976. At its meeting on March 23, 1976 the Chief Counsel of the Public Utility Commission informed it that the ordinance in question had been received and that since the Public Utility Commission did not have jurisdiction on the matter, the receipt of the ordinance ...