Appeals, Nos. 182 and 183 | Pa. | May 18, 1959
Lead Opinion
Opinion by
The order, of the Superior Court, purporting to abrogate so much of the Public Utility Commission’s Rule 10 of its Railroad Regulations as “requires application to and approval by the Commission ‘prior to the removal, elimination, or substantial change in the schedule of any passenger train . . .’ ”, must be vacated. The matter was coram non judice. The Superior Court was, therefore, without jurisdiction to entertain the appeal.
The attempt of The Pennsylvania Railroad Company, as appellant, to have the Superior Court review the Commission’s Rule 10 without the regulatory impact of the rule ever having been visited upon the appellant in any manner could, at most, evoke no more than an advisory opinion which our courts are not
Rule 10 was promulgated by the Public Utility Commission in an exercise of its legislative authorization and is not judicially reviewable except that its enforcement be made the basis of a justiciable controversy. The same is equally true of rules of court. In Tribune Review Publishing Co. Case, 379 Pa. 92" court="Pa." date_filed="1954-06-29" href="https://app.midpage.ai/document/tribune-review-publishing-co-case-6257131?utm_source=webapp" opinion_id="6257131">379 Pa. 92, 94, 113 A. 2d 861, it was plainly recognized that “This court does not entertain a proceeding which seeks an abstract, academic opinion as to the constitutionality of a statute. It acts only in a case in which the application of the statute to an actual situation creates a cause of action which may then be asserted by a litigant affected thereby. What is thus true in-regard to a statute is equally true of a rule of court.” This jurisdictional situation is not one bit different when judicial opinion is sought with respect to an unapplied regulation which a governmental administrative body, acting pursuant to its statutory authority to prescribe in relevant regard, has promulgated.
The Superior Court’s appellate jurisdiction rests exclusively in express statutory authorization. Thus, it is, that orders of the Public Utility Commission are appealable to the Superior Court. Section 1101 of the Act of May 28, 1937, P.L. 1053, 66 PS §1431 (a), provides that “Within thirty days after the service of any order by the commission . ; . any party to the proceedings affected thereby may appeal therefrom to
No emergency, real or feared, and no alleged hardship to a complaining party, however great, can justify a court’s entertaining and passing upon a subject matter which is not within its jurisdictional competence. Nor can jurisdiction in such instance be acquired through counsel’s failure to raise the question, which it is never too late to be interposed. Indeed, it is the primary duty of the court itself to raise the question of its jurisdiction of the subject matter if that has not otherwise been done.
The order of the Superior Court, entered November 14, 1958, is hereby vacated and set aside.
Dissenting Opinion
The Pennsylvania Public Utility Commission adopted on March 24,1958, Rule 10, the pertinent parts of which are as follows: “Abandonment of Service. A certificate of public convenience evidencing the Commission’s approval of the abandonment of intrastate passenger train service shall be obtained prior to the withdrawal of such service on any line of railroad.
“Curtailment of Service.
The Pennsylvania Railroad Company removed several passenger trains between Philadelphia and Pittsburgh without obtaining prior approval of the Commission. The Railroad appealed to the Superior Court from Rule 10, instead of having an actual case with evidentiary facts presented to challenge the validity and applicability of the rule. The Superior Court sustained the appeal and reversed that part of Rule 10 which required application to and approval by the Commission prior to the removal, elimination, or substantial change in the schedule of any passenger train.
The management and operation of a railroad or other public utility is wisely vested in the corporation, not in the Public Utility Commission.
The Public Utility Commission has only the jurisdiction and the powers which are given it by the Legislature, expressly or by necessary implication: Delaware River Port Authority v. Pennsylvania Public Utility Commission, 393 Pa. 639" court="Pa." date_filed="1958-09-29" href="https://app.midpage.ai/document/delaware-river-port-authority-v-pennsylvania-public-utility-commission-6257583?utm_source=webapp" opinion_id="6257583">393 Pa. 639, 145 A. 2d 172. While the Public Utility Commission is expressly authorized to supervise and regulate public utilities in the public interest,
Section 202(d) of tbe Public Utility Law of 1937, 66 PS § 1122(d), requires a certificate of public convenience “For any public utility to dissolve, or to abandon or surrender, in whole or in part, any service, right, power, franchise or privilege . . .”
Tbe railroad contends that tbe removal, elimination or curtailment in its passenger train service is not an “abandonment” of service; that abandonment of service occurs only upon tbe removal or elimination of tbe last train; that there is no provision in tbe Public Utility Law requiring a railroad to obtain prior approval of a “curtailment” in its train service; and that §§404, 412, 413 and 1008, which expressly provide (respectively) for time schedules, standards of service, adequate service, and Commission orders after investigation — all, after reasonable notice and bearing — further demonstrate that tbe Public Utility Commission was without authority to promulgate tbe “curtailment” provisions of Bule 10.
It may help clarify tbe questions involved if we point out that the Bailroads do not deny tbe power of tbe Commission to regulate passenger train service in Pennsylvania, or to require adequate service, or to require notice of proposed schedule changes in order that they may be investigated by tbe Commission, or to require, after hearing, trains to be restored or new trains to be put on and operated, if tbe evidence presented
However, before we reach the merits, the question arises whether Rule 10 can be appealed from. The Railroads rely upon §1112, 66 PS §1442, which provides : “Whenever the commission shall make any rule, regulation, finding, determination, or order under the provisions of this act, the same shall be prima facie evidence of the facts found, and shall remain conclusive upon all parties affected thereby, unless set aside, annulled, or modified in an appeal to the Superior Court taken as provided in this act.”
Rule 10 is clearly and undoubtedly a formal directive rule or order which is neither procedural nor interlocutory, and requires no further implementation by the Commission. Moreover, by its terms and under the Public Utility Law it has an important and punitive effect on the Railroads. Section 907 of the Law requires every public utility to “obey and comply with such regulations or orders”; and §1301 et-seq. provides penalties for violation of or failure to comply with any regulation or final order of the Commission.
Entirely apart from whether the Superior Court lacked jurisdiction, as distinguished from whether it desired (in its discretion) to exercise its jurisdiction on the present state of the record — I agree with the general rule which is enunciated in Knup v. Philadelphia, 386 Pa. 350" court="Pa." date_filed="1956-11-12" href="https://app.midpage.ai/document/knup-v-philadelphia-2097104?utm_source=webapp" opinion_id="2097104">386 Pa. 350, 353, 126 A. 2d 399, where the Court said: “. . . it is . . . well established that a court will take jurisdiction only in a case in which a challenged statute, ordinance, or rule of court has been actually applied to a litigant; it does not undertake to decide academically the unconstitutionality or other alleged invalidity of legislation until it is brought into operation so as to impinge upon the rights of some person or persons.” However, that rule, like virtually all general rules, is subject to exceptions. This was specifically recognized in Pennsylvania Railroad v. Driscoll, 336 Pa. 310" court="Pa." date_filed="1939-10-30" href="https://app.midpage.ai/document/pennsylvania-r-r-co-v-driscoll-3845652?utm_source=webapp" opinion_id="3845652">336 Pa. 310, 9 A. 2d 621, and in Pennsylvania Railroad v. Schwartz, 391 Pa. 619" court="Pa." date_filed="1958-03-17" href="https://app.midpage.ai/document/pennsylvania-railroad-v-schwartz-6257501?utm_source=webapp" opinion_id="6257501">391 Pa. 619, 139 A. 2d 525, where this Court allowed a bill in equity to test the constitutionality of the Pull Crew Act before it had been applied to the complainant or put into actual operation. Examples of recent authorities which recognized exceptions to the general rule are: Scranton Spring Brook Water Co. v. Pennsylvania Public Utility Commission, 165 Pa. Super. 286" court="Pa. Super. Ct." date_filed="1949-04-14" href="https://app.midpage.ai/document/scranton-spring-brook-water-service-co-v-pennsylvania-public-utility-commission-3854752?utm_source=webapp" opinion_id="3854752">165 Pa. Superior Ct. 286, 67 A. 2d 735; Wortex Mills v. Textile Workers Union of America, 369 Pa. 359" court="Pa." date_filed="1952-01-07" href="https://app.midpage.ai/document/wortex-mills-inc-v-textile-workers-union-of-america-6256872?utm_source=webapp" opinion_id="6256872">369 Pa. 359, 370, 85 A.2d 851" court="Pa." date_filed="1952-01-07" href="https://app.midpage.ai/document/wortex-mills-inc-v-textile-workers-union-of-america-6256872?utm_source=webapp" opinion_id="6256872">85 A. 2d 851; Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407" court="SCOTUS" date_filed="1942-06-01" href="https://app.midpage.ai/document/columbia-broadcasting-system-inc-v-united-states-103691?utm_source=webapp" opinion_id="103691">316 U. S. 407; see also Allentown School District Mercantile Tax Case, 370 Pa. 161" court="Pa." date_filed="1952-03-24" href="https://app.midpage.ai/document/allentown-school-district-mercantile-tax-case-6256888?utm_source=webapp" opinion_id="6256888">370 Pa. 161, 87 A. 2d 480.
Columbia Broadcasting System, Inc. v. United States, 316 U.S. 407" court="SCOTUS" date_filed="1942-06-01" href="https://app.midpage.ai/document/columbia-broadcasting-system-inc-v-united-states-103691?utm_source=webapp" opinion_id="103691">316 U. S. 407, in principle rules the present appeal on the question of jurisdiction. In that case complainant brought a bill in equity to set aside an order of the Federal Communications Commission which provided that there shall be no renewal of the licenses of stations whose contracts with a broadcasting network contain certain provisions proscribed by the Commission. The Supreme Court reversed the lower Court which had dismissed the complaint for want of jurisdiction. Complainant contended that the Commission had exceeded its statutory authority and that it was entitled to appeal the Commission’s order, even though no action had been taken by the Commission to enforce its order or even to threaten complainant with punishment if it violated its order.
The language of Section 402(a) of the Communications Act of 1934, 47 U.S.C. §402(a) is similar to the provision of §1112 of our Public Utility Law.
The Court said (pages 416, 417, 418-419, 424-425) : “Section 402(a) makes applicable the provisions of the Urgent Deficiencies Act to ‘suits to enforce, enjoin, set aside, annul, or suspend any order of the Commission’ except orders ‘granting or refusing an application for a construction permit for a radio station, or for a radio station license, . . .’ Since the Commission’s order neither grants, denies nor modifies any license, any review in advance or independently of an application for a station license must be under §402(a), and then only if the Commission’s order promulgating the regulations is an ‘order’ within the meaning of this section.
“. . . The ultimate test of reviewability is not to be found in an overrefined technique, but in the need of the review to protect from the irreparable injury threatened in the exceptional case by administrative rulings which attach legal consequences to action taken in advance of other hearings and adjudications that may follow, the results of which the regulations purport to control.”
Assuming, arguendo, that — notwithstanding the broad sweeping all-inclusive language which gives a right to appeal to the Superior Court- from any rule or order of the Public Utility Commission — an appeal, generally speaking, will not lie from the promulgation of an order or rule such as Rule 10, except in a case where the rule has been actually applied to a litigant— the facts are clear (1) that all parties in interest agree that the Superior Court had jurisdiction to hear this case and request us to determine the validity of Rule 10 upon the present- record, and (2) the proposed threatened curtailment of passenger train service by the Railroads is of tremendous importance and a serious continuing threat to the traveling public, and (3) a decision on -the merits will avoid a multiplicity of hearings and -investigations, and (4) an actual ease arising under Rule 10 would likely take such a long
Considering this appeal on its merits there is a real distinction between the abandonment of a service in whole or in part, and the curtailment of service by the removal or elimination of one or several trains. The provision of Rule 10 relating to curtailment of service is, on its face, clearly beyond the power of the Public Utility Commission and is therefore an invalid exercise of the Commission’s powers.
However, the Commission is not powerless to take swift and appropriate action to deal with the serious situation with which the public is threatened. It has two obvious remedies. One of these remedies is (a) to schedule immediate hearings to determine whether to approve the elimination of certain trains, or whether to require one or more of these trains to be restored; and (b) to make a prompt decision thereon. Notwithstanding the volume of business before the Commission, the public can be adequately protected and the railroads can be relieved of great and irreparable damage by the Commission’s giving priority to the hearings and decisions in cases involving a substantial curtailment of train service.
For these reasons I would affirm the Order of the Superior Court.
The same day the Public Utility Commission issued the following news release: “The Public Utility Commission today ordered railroads in Pennsylvania for the first time to file formal applications for approval to make passenger train service curtailment.”
Italics throughout, ours.
The Public Utility Commissioners have far less experience, and for this and other well known reasons are far less qualified to manage a railroad than are the officers and directors of the railroad.
Act of May 28, 1937, P.D. 1053, Art. IX, §901, 66 PS §1341. Cf. Reading and Southwestern St. Railway Co. v. Penna. Public