Appeal from the Order of the Court of Common Pleas of Fayette County in the case of Borough of Brownsville v. Helicon Corporation, t/d/b/a Ruth Cablevision Company, No. 688 of 1980, G.D.
William M. Young, Jr., McNees, Wallace & Nurick, for appellant.
Charles O. Tebley, Jr., with him William M. Radcliffe, Coldren & Coldren, for appellee.
President Judge Crumlish, Jr. and Judges Rogers, Blatt, Craig and MacPhail. Opinion by Judge Blatt.
[ 68 Pa. Commw. Page 376]
Helicon Corporation*fn1 (Helicon) appeals an order of the Court of Common Pleas of Fayette County confirming a decree nisi which granted the Borough of Brownsville's (Borough) prayer to enjoin Helicon from charging a monthly cable television fee in excess of the maximum rate established by a Borough ordinance.
The following facts were stipulated to by the parties in the trial court. On July 11, 1966, the Borough Council passed Ordinance No. 242 granting to Helicon's predecessor and its assigns, for a period of 20 years, the right to construct, maintain, and operate a community antenna television system in the Borough. Section 3 of Ordinance No. 242 reads as follows:
Section 3. There is hereby granted the further right, privilege and authority to the Company to lease, rent or in any other manner obtain the use of towers, poles, lines, cables and other equipment and facilities from any and all public utilities and holders of public licenses and franchises within the limits of the Borough of Brownsville, and subsequent annexations thereto, and to utilize and exercise such use subject to
[ 68 Pa. Commw. Page 377]
all present and future ordinances and regulations of the Borough.
Section 12 of Ordinance No. 242 authorized the Borough to execute a contract with Helicon's predecessor which would provide for construction of the system and related matters, but no such contract was ever entered into by the parties. By a letter dated December 16, 1977, Helicon's predecessor notified its subscribers in the Borough that, effective January 1, 1978, the monthly cable television charge for the first outlet to all subscribers would be increased by $.75 per month. In January 1978, this basic service rate was again increased from $6.75 to $7.50 per month and on February 14, 1978, the Borough Council passed Ordinance No. 335 which provided, inter alia, that all rates imposed by cable television companies operating in the Borough were subject to Borough regulation and that, effective March 1, 1978, any increase in the basic service rate in excess of $6.75 per month could be made only with the consent of the Borough Council. On May 24, 1978, however, the Board enacted Ordinance 338 which repealed the $6.75 maximum established by Ordinance 335 and provided that, effective March 1, 1978, the maximum basic service rate would be $7.50 per month. It further provided that the said rate could not be increased without prior approval of the Borough Council. On July 16, 1978, Helicon purchased all of the issued and outstanding stock of its predecessor and, by letter of January 1, 1979, notified its subscribers in the Borough that, effective January 1, 1979, the basic service rate would be raised by $.25 per month (to $7.75), and that the charge for each additional television set would be increased to $2.50 per month.*fn2 Helicon then informed the Borough that it
[ 68 Pa. Commw. Page 378]
had increased the rates and the Borough responded that it objected to said increases. By letter dated January 3, 1980, Helicon informed the Borough once more that it was necessary to increase its basic service rate by $.50 (from $7.75 to $8.25 per month) and would do so on March 1, 1980. After this last increase was implemented, the Borough sought ...