15 A.2d 547 | Pa. Super. Ct. | 1940
Argued May 1, 1940.
This appeal arises from the same record as that of West PennRailways Co. v. Pennsylvania Public Utility Commission,
The track referred to consists of approximately 490 feet of track beginning from the point of intersection of the tracks of the West Penn Railways Company and the Irwin-Herminie Traction Company on Pennsylvania Avenue, 81 feet from the westerly borough limits, thence eastward along said avenue to the intersection of Pennsylvania Avenue and Main Street. This portion of track was originally constructed by the Manor Valley Railway Company, predecessor to the Irwin-Herminie Traction Company, pursuant to the franchise from the Borough of Irwin granted by an ordinance approved May 28, 1908.
The Borough of Irwin, by an ordinance approved March 5, 1917, granted to the McKeesport and Irwin Railway Company, predecessor to the West Penn Railways Company, a right of way over the above-mentioned track. The legal authority for this grant was derived from the reserved right running to the Borough of Irwin under the ordinance of 1908. *160
An operating agreement of August 31, 1920, between West Penn Railways Company and Irwin-Herminie Traction Company provided for the operation of cars of the former company over the latter's tracks on Pennsylvania Avenue.
West Penn Railways Company and the traction company jointly used the track until the traction company discontinued operating in 1931. West Penn Railways Company used the track exclusively from 1931 to June, 1938, when that company discontinued service by virtue of a supersedeas granted by this court, dated June 2, 1938.
It is within the power of the commission in granting a certificate of public convenience for abandonment under section 202(d) of the Public Utility Law of May 28, 1937, P.L. 1053, as amended, 66 P. S. § 1122(d), to attach reasonable conditions to its consent by virtue of section 203(a), 66 P. S. § 1123(a), so long as they are proper under the company's franchises or under contracts previously entered into by it with the various municipalities. Jennings v. Pennsylvania Public UtilityCommission et al.,
We have held that the commission has jurisdiction to determine whether corporations have the right and power to do or not to do the thing for which the commission's approval is sought. Pittsburgh Railways Co. et al. v. Public ServiceCommission et al.,
In the present case the commission took the position that the tracks in question in the Borough of Irwin were not owned by the West Penn Railways Company; that the ordinance and inter-company agreements clearly indicated that Irwin-Herminie Traction Company did not relinquish its ownership of the track on Pennsylvania Avenue; that there was nothing in the franchise-ordinance which altered the burden of ownership of these tracks; and that therefore it could not require the West Penn Railways Company, as a condition to abandonment, to remove tracks which it did not own, and which it was not obligated to maintain.
In imposing conditions to its consent to abandon services, etc., the commission may inquire whether the utility is under any duty to do, or is relieved from doing, i.e., by lack of ownership, the thing which is basically essential for action which the commission is asked to take, and "orderly procedure requires that the commission pass upon that phase of the controversy before the courts adjudge it": Pittsburgh RailwaysCo. et al. v. Public Service Commission et al.,
We are of the opinion that the commission did not err in making that part of its order here involved, if for no other reason than that ownership of the tracks in question, with resulting responsibility, is not clear on the face of the contracts and franchises. The question of the binding effect of contracts is one of law not cognizable by the commission. Borough of Warren v.Public Service Commission,
Appeal is dismissed, at the cost of appellant.