No. 2161 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Philadelphia County, at No. 4918 April Term 1979.
Robert H. Dickman, Philadelphia, for appellant.
Harriet F. Withstandley, Philadelphia, for Bell, appellee.
Thomas E. Zemaitis, Philadelphia, for Donnelley, appellee.
Cercone, President Judge, and Wickersham and Brosky, JJ.
[ 293 Pa. Super. Page 221]
On April 30, 1979, plaintiff-appellant, A.B.C. Sewer Cleaning Company, on behalf of itself and all others similarly situated, commenced this action in the Philadelphia Court of Common Pleas, seeking an accounting, injunctive relief and damages.*fn1 The gravamen of the cause of action is that the
[ 293 Pa. Super. Page 222]
defendants, Bell of Pennsylvania and The Reuben H. Donnelley Corp. (hereinafter Bell and Donnelley), are the beneficiaries of a monopoly on the publication and distribution of classified telephone directories popularly known as the "Yellow Pages"; that they have a common law duty as such beneficiaries to serve the public at reasonable rates; and that they have conspired together to violate that duty. The essence of the scheme, plaintiff alleges, is the continual creation of new additions to the Yellow Pages directories distributed in the City of Philadelphia. Each "new" directory reaches a smaller audience, so that a purchaser of Yellow Pages advertising who wishes to reach all potential customers throughout Philadelphia must purchase space in more directories, each reaching a smaller audience, at a growing aggregate cost (see Amended Complaint, paras. 20-27).
In accordance with Pa.R.C.P. No. 1703(b), the case was assigned to the Honorable Jacob Kalish.
The defendants filed preliminary objections in the nature of demurrers which were overruled by Judge Kalish November 29, 1979. The defendants then filed responsive pleadings.
Thereafter, plaintiff filed its Motion for Class Action Certification, defining the proposed class as:
All persons which, continuously from any date prior to March 1, 1978, purchased display advertisements in any edition of the Philadelphia Yellow Pages and which thereafter purchased display advertisements in the same edition and in either the Business Industrial Directory or any Community Directory, as well.
As used in the foregoing class description, the following definitions apply:
(a) Person means an individual, partnership, corporation or other entity;
(b) Display advertisements means all Yellow Pages advertising other than service regular listings.
[ 293 Pa. Super. Page 223]
(c) Directory means classified telephone directory or ...