Bell Telephone Co. v. Bristol Township

54 Pa. D. & C.2d 419, 1971 Pa. Dist. & Cnty. Dec. LEXIS 146
CourtPennsylvania Court of Common Pleas, Bucks County
DecidedAugust 30, 1971
Docketno. 753
StatusPublished

This text of 54 Pa. D. & C.2d 419 (Bell Telephone Co. v. Bristol Township) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Bucks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell Telephone Co. v. Bristol Township, 54 Pa. D. & C.2d 419, 1971 Pa. Dist. & Cnty. Dec. LEXIS 146 (Pa. Super. Ct. 1971).

Opinion

GARB, J.,

This is an action in equity instituted by the Bell Telephone Company of Pennsylvania against the Township of Bristol seeking to enjoin the township from taking any action to enforce the provisions of two ordinances of the township, specifically identified in the complaint, and requesting that the aforesaid ordinances be declared unlawful, illegal and void and, therefore, unenforceable as to plaintiff. The case was submitted to the court on a case stated and argued before the court en banc.

We adopt as findings of fact, the facts set forth in the case stated, as well as paragraphs 1 through 9, inclusive, of the complaint, all of which were admitted by defendant’s answer. Those facts establish that plaintiff is a public utility corporation organized and existing under the laws of Pennsylvania, with its principal office at 1 Parkway, Philadelphia, Pa., and is engaged, both in the County of Bucks and elsewhere within the Commonwealth of Pennsylvania, in furnishing telephone and other communication services to the public. The Township of Bristol is a first class township operating under the provisions of the First [420]*420Class Township Code of May 27, 1949, P. L. 1955, 53 PS §55101, et seq. Plaintiff provides telephone and other telecommunication services to the public throughout the Commonwealth of Pennsylvania under the jurisdiction and regulation of the. Pennsylvania Public Utility Commission, pursuant to the provisions of the Public Utility Law of May 28, 1937, P. L. 1053, 66 PS §1101, et seq. The said Public Utility Law, as well as the regulations propounded by the Public Utility Commission pursuant to its authority so provided in the said Public Utility Law, contain various provisions regarding the service and facilities as well as the maintenance thereof to be provided by plaintiff as a public utility which shall be set forth in further detail hereinafter as appropriate. In compliance with the aforesaid regulations, plaintiff has adopted a program of periodic tests and inspections for the repair and replacement of its poles.

On or about March 6, 1951, the Board of Commissioners of the defendant-township passed ordinance no. 4, inter alia, assessing a license charge or inspection fee of 25 cents per pole per annum on all telegraph, telephone, trolley, electric light and similar poles erected within any public highway, road, street, avenue, lane or alley in the township. Said ordinance also requires that all poles be lettered or stenciled with the initials of the owners or some other designation of ownership, and that a complete record showing the location and number of each pole be filed with the township secretary annually. On or about January 15, 1969, the Board of Commissioners of the defendant-township passed ordinance no. 623, which amended ordinance no. 4, so as to increase the aforesaid license charge or inspection fee to $1 per pole per annum. On or about January 8, 1970, defendant sent plaintiff a bill described as “Utility Poles — Tax Due for Year of [421]*4211969” billing plaintiff for 1,285 poles at $1 per pole or $1,285. On or about February 15, 1971, defendant sent to plaintiff a bill for “utility poles — tax due for year 1970” for 1,275 poles at $1 per pole or $1,275 and for “utility poles — tax due for year 1969 (unpaid)” for 1,285 poles at $1 per pole or $1,285 or a total bill of $2,560. Plaintiff has refused and continues to refuse to pay defendant’s bills hereinbefore referred to and, therefore, on October 12, 1970, defendant informed plaintiff by letter of its intention to proceed with the enforcement of the aforesaid ordinances.

In furnishing communication services throughout the Commonwealth of Pennsylvania and between the States of the United States, plaintiff owns and maintains 1,002,750 poles which are an essential part of plaintiff’s communications system. Approximately 1,289 of such poles are maintained with the right-of-way of public streets of defendant-township.

Plaintiff’s business of supplying telephone and telegraph service to the public is conducted under the jurisdiction and regulation of the Pennsylvania Public Utility Commission pursuant to the Public Utility Law of the Commonwealth of Pennsylvania. Plaintiff’s communications lines, including those in defendant-township, are operated and maintained under the jurisdiction and regulation of the said Pennsylvania Public Utility Commission. Plaintiff is required by the Public Utility Law of the Commonwealth of Pennsylvania, as administered by the Pennsylvania Public Utility Commission, to provide the public with such telephone and telegraph service and to maintain such transmission lines, poles, equipment and facilities and the furnishing of such service as shall be necessary and proper for the accommodation, convenience and safety of the public.

Although plaintiff purports to attack ordinance no. [422]*4224 and its amendment by ordinance no. 623 in their entirety, it is clear that the attack is directed specifically upon section 11(b) of ordinance no. 4, as amended by ordinance no. 623. This specific section provides as follows:

“That on and after April 1, 1951, a license charge or inspection fee of Twenty-five cents ($0.25) per pole per annum shall be and hereby is assessed on all poles erected within any public highway, road, street, avenue, lane or alley in the Township of Bristol.”

The rest of ordinance no. 4 deals extensively with the requirements, restrictions and conditions, together with filing and indemnity fees, for the opening of public streets, the purpose of placing therein pipes, sewers, drains or conduits or for the setting or planning of telegraph, telephone, electric light or other poles, or for repairs thereto or renewals thereof, as well as the emplacing of sidewalks, curbs and gutters within said public ways, erection of gasoline pumps, oil tanks or other obstructions or the planting of any trees or shrubbery within the said public ways, and other similar matters. Ordinance no. 623 amended ordinance no. 4 solely to increase the license charge or inspection fee from twenty-five cents to $1 per pole per annum. There is no provision in either ordinance providing for inspection or maintenance of the said poles by the defendant-township, nor any procedure to effectuate the repair of same.

As heretofore noted, the bills rendered by defendant-township denominated the charge as a tax on the poles. The ordinances themselves denominate the charge as a license charge or inspection fee. Clearly, if the assessment is, in fact, a tax, it cannot stand and must be stricken. A political subdivision, and a first class township as such, has only those powers specifically delegated to it by the legislature: Commonwealth v. [423]*423Hanzlik, 400 Pa. 134 (1960). If the township is to have the right to tax these poles, its power to do so must be derived from the so-called “Tax Anything Act” of December 31, 1965, P. L. 1257, sec. 2, as amended, December 21, 1967, P. L. 878, sec. 1, 53 PS §6902. The foregoing act specifically excepts from the political subdivisions the power to impose any tax on a privilege, transaction, subject, occupation or personal property which becomes subject to a State tax or license fee. The act further exempts from taxation gross receipts from utility service from any person or company whose rates and services are fixed and regulated by the Pennsylvania Public Utility Commission or any public utility services rendered by any such person or company or on any privilege or transaction involving the rendering of any such public utility service.

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Bluebook (online)
54 Pa. D. & C.2d 419, 1971 Pa. Dist. & Cnty. Dec. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-telephone-co-v-bristol-township-pactcomplbucks-1971.