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BOROUGH MUNHALL v. DYNAMIC CABLEVISION (09/13/77)

decided: September 13, 1977.

THE BOROUGH OF MUNHALL, A MUNICIPAL CORPORATION, APPELLANT
v.
DYNAMIC CABLEVISION, INC., A CORPORATION, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of The Borough of Munhall, a municipal corporation, v. Dynamic Cablevision, Inc., a corporation, No. GD 7528705.

COUNSEL

Edward A. Witt, with him Cleland, Hurtt, Witt and Weil, for appellant.

Mord C. Taylor, Jr., with him Ruby, Nescott and Taylor, for appellee.

George J. Barco, with him Yolanda G. Barco, and Barco and Barco, for amicus curiae, Pennsylvania Cable Television Association.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Judge Kramer did not participate in the decision. Opinion by Judge Rogers. Judge Kramer did not participate in the decision in this case.

Author: Rogers

[ 31 Pa. Commw. Page 576]

The Borough of Munhall (Borough) has appealed an order of the Court of Common Pleas of Allegheny County sustaining Dynamic Cablevision, Inc.'s (Dynamic) demurrer to, and dismissing, the Borough's complaint in equity. We reverse.

On July 26, 1968, the Borough enacted Ordinance No. 1177 granting Dynamic the exclusive right "to erect, maintain and operate transmission and distribution facilities, in, under, over, along, across and upon the streets, lanes, alleys, avenues, bridges, highways and other public places in said borough for the purpose of transmission by cable and distribution of television impulses and energy for the sale to the inhabitants of the Borough of Munhall. . . ." Incorporated in Ordinance No. 1177 was a contract between the Borough and Dynamic which included among terms and conditions, one requiring Dynamic to pay the Borough a fee based on percentages of Dynamic's monthly gross receipts, and another establishing as the rate Dynamic might charge subscribers for its services the sum of $4.95 per month, with a provision that no increase in

[ 31 Pa. Commw. Page 577]

    the charge could be made without permission of the Borough.

Effective November 1, 1974, Dynamic increased its customer service charge to $5.95 per month without the Borough's permission. In response, the Borough sued in equity seeking an order enjoining Dynamic from charging its subscribers more than $4.95 per month, and an order which would require Dynamic to refund excess charges paid by subscribers. The Borough also sought an accounting of fees allegedly due and unpaid to the Borough for the years 1974 and 1975.

Dynamic's preliminary objections in the nature of a demurrer to the Borough's complaint in equity raised three questions of law, stated by the lower court as follows:

1. Do boroughs have the right to grant exclusive franchises to conduct a cable television business ...


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