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Palermo v. Bell Telephone Co.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided as amended july 29 1969.: July 1, 1969.

JOHN A. PALERMO AND SHIRLEY PALERMO, HIS WIFE,
v.
THE BELL TELEPHONE COMPANY OF PENNSYLVANIA AND ARLEN SPECTER, DISTRICT ATTORNEY OF PHILADELPHIA, (2 CASES.)

Staley, Aldisert and Stahl, Circuit Judges.

Author: Per Curiam

Opinion OF THE COURT

In February of 1968, the office of appellee Arlen Specter, the District Attorney of Philadelphia County, obtained evidence from the home of appellants, John and Shirley Palermo, which tended to implicate John Palermo of using his telephone service in violation of the gambling and banking laws of Pennsylvania. Subsequently, the District Attorney's office informed appellee Bell Telephone Company of Pennsylvania of the alleged illegal use of the telephone, and Bell in turn, acting in accordance with tariff regulations filed with both the Pennsylvania Public Utilities Commission and the Federal Communications Commission, discontinued appellants' telephone service on the stated ground that the service had been and would be used for unlawful purposes.

Appellants brought suit against Specter and Bell in the district court pursuant to section 406 of the Federal Communications Act (47 U.S.C. § 406),*fn1 charging inter alia that their telephone service (and their right to the continuation thereof) was summarily discontinued without legal process or proceeding in violation of 47 U.S.C. §§ 201 and 202. The district court refused to preliminarily enjoin appellees from the continued termination of appellants' telephone service and dismissed the complaint.*fn2 This appeal followed.

In their effort to litigate this controversy in the Federal courts rather than in either of the aforementioned commissions or in the state courts, appellants have attempted to walk the thinnest of legal tightropes. On the one hand, they argue that termination of their telephone service was illegal because done without a hearing and on the basis of alleged illegally seized evidence. On the other hand, they insist that Bell acted reasonably in all respects in terminating their service and that the tariff regulations (under which Bell was admittedly obligated to act)*fn3 were reasonable -- even though they did not provide for a hearing prior to termination.*fn4 Detecting the obvious lack of balance in appellants' position, the district court held, and correctly so, that if Bell acted reasonably in the premises, as appellants concede, there was no cause of action upon which relief could be granted under 47 U.S.C. §§ 201 and 202.

Accordingly, the district court's order denying the motion for a preliminary injunction and dismissing the complaint will be affirmed.


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