93 Pa. Commw. 351 | Pa. Commw. Ct. | 1985
Lead Opinion
Opinion by
This appeal results from an order of the Pennsylvania Public Utility Commission (PUC) which adopted an initial decision of an Administrative Law Judge ■‘.('ALJ)-and ordered the transfer of a certificate of ' public convenience to operate a taxicab in the City of .Philadelphia' from appellant, P.D.J. Cab Company (PDJ) to intervenor Independence Cab Co-. (Independence).
’ ’’Although the facts pertaining strictly to the present matter are relatively straightforward, a' more- exten
During the pendency of that application, Goldberg took over effective operation of PDJ’s sole certificate through a lease arrangement. Goldberg and/or Independence has paid all faxes, carried the necessary insurance and filed all required annual reports with
An initial hearing on the application was held in .July of 1982. In October of 1982, Orenstein requested that the PUC place .the application on hold, alleging ■ that Independence had breached a number of provisions of both the lease .agreement and the agreement of sale. Despite the withdrawal of Orenstein’s consent to the transfer, additional hearings were held in both April and June of 1983. On November 2, 1983, the ALJ issued -an initial decision approving the transfer, finding that Independence had demonstrated the requisite fitness to be a certificate holder. Further, the ALJ relied on the fact that Independence had been successfully . operating pursuant to the certificate since 1980. PDJ filed exceptions to the initial decision which were denied. The PUC adopted the initial decision and this appeal followed.
, : Appellant makes two arguments in this- appeal. It first argues that a judgment creditor of a holder of ,a certificate'of public convenience may not be a transferor of that certificate in proceedings under 66 Pa. . C, S. §1102(a)’(3). In the present case, when Oren- : stein attempted to withdraw his consent to the transfer, Pannonia exercised its rights under a confession of judgment clause in the note signed by Orenstein. ; While Pannonia and Independence made such argu- , ment, neither the ALJ nor the Commission treated . Pannonia as a transferor, in this case. In fact, the PUC admits that a judgment creditor of a certificate holder cannot act as a transferor of that certificate since any such transfers must be approved by .the Com- . mission. As Pannonia was never treated as a trans- . ferorin this case, we need not say more on this point.
, Appellant also argues that the Commission erred i in approving the transfer of the certificate after Oren
Appellant also chooses to characterize the Commission’s actions in approving the transfer as a resolution of a private contract dispute between PDJ and Independence. In Snyder v. Pennsylvania Public Utility Commission, 187 Pa. Superior Ct. 147, 144 A.2d 468 (1958), the court held, that the Commission was without jurisdiction to adjudicate- purely private rights. See Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977). However, we believe that the Commission resolved no purely private dispute in this ease; to ¡the contrary, the -Commission determined only that Independence was fit to hold a certificate, a determination which is solely within the- Commission’s province. A close- reading of Snyder, in fact, shows that a transferor need not give its continuous consent in order that an application for-transfer be approved. There, one Smith was the holder of a certificate granting ' various transportation privileges. Smith contracted with one Snyder to transfer certain of those privileges to Snyder. The Commission approved the transfer' of various privileges, including one which
■ For our present purposes, it is important to note that the Superior Court stated:
The Commission has been granted broad authority to effect the legislative intent, and is empowered, not only to amend, but even to cancel certificates previously granted: Lafrobe Bus Service v. P.a. P.U.C., 175 Pa. Superior Ct. 164, 103 A.2d 442. While the Commission may not act arbitrarily, it has the same power to revoke a certificate as it has to issue it, upon due cause being shown: Paradise v. Pa. P.U.C., supra, 184 Pa. Superior Ct. 8, 132 A.2d 754.
Snyder at 153, 144 A.2d at 470.
;f- Our scope of review from an order of the Commission is well settled. We may not disturb an order involving the issuance, rescission, revocation or transfer of a certificate unless an error of law has been committed, a necessary finding of fact is not supported by the record or one’s constitutional rights have been violated. Yellow Cab Company of Pittsburgh v. Penn
Order
Now, December 6, 1985, the 'July 12, 1984 order of the, Pennsylvania Public Utility Commission at No. A-001040Q3 is affirmed.
Dissenting Opinion
Dissenting Opinion by
Í respectfully dissent.
There can be no doubt that the Public Utility Commission has authority to revoke a certificate of public convenience and that its prior approval of the transfer of a certificate of public convenience is required.
Here, however, the certificate of public convenience at ássúe was not the subject of revocation' proceedings. Alt that was before the Public Utility Commission was the owner’s application for the approval of a transfer which the owner subsequently requested be withdrawn. Once that occurred, I do not believe the Public Utility Commission could proceed further.
It seems apparent from the record that there were sufficient grounds upon which the Public Utility -Commission could have initiated revocation proceedings but that'prooess was not used; rather, the-Commission simply approved the transfer .in the best interest- bf the service, convenience -and accommodation of the public. While-1 agree that the Commission has broad plenary powers, I do not agree that it can arbitrarily override the withdrawal of an owner’s application for ■transfer-and order that the-subject certificate be transferred. " , k-