36 Pa. Commw. 179 | Pa. Commw. Ct. | 1978
Opinion by
Troiani Brothers, Inc. (Troiani) has filed a petition for review in the nature of a complaint in equity within our original jurisdiction
Troiani, a Pennsylvania corporation, operates the Pilot House, a luncheon and supper restaurant located
On October 22, 1975, Troiani made application to the PUC for a certificate of public convenience to operate the “Pittsburgher” in the above described manner. This application was protested on December 3, 1975, by Gateway Clipper, Inc., which is presently certificated by the PUC to provide services similar to those sought by Troiani’s application. On February 25, 1977, over sixteen months after filing its application, Troiani, by letter of counsel, informed the PUC that, in its opinion, the PUC lacked jurisdiction to act upon said application.
On March 4, 1977, Troiani received a complaint from the PUC,
No injunction shall issue modifying, suspending, staying, or annulling any order of the commission, or of a commissioner, except in a proceeding questioning the jurisdiction of the commission, and then only after cause shown upon a hearing.4
Troiani here alleges that the PUC is “clearly in error” in exercising jurisdiction over the application and the complaint in that: (a) Section 13.1 of the Second Class County Port Authority Act (Second Class County Act),
While it is true that this statutory provision [Section 1111 of the Code] speaks of an ‘injunction’ and not of the common law power of prohibition, we think that the semantical difference is without significance. ... We therefore think that when the General Assembly spoke in 66 P.S. §1441 of an ‘injunction’ to be issued only ‘after cause shown’, it did not intend to create any different test for determining in what cirrcumstances a superior court (here the Commonwealth Court) would be justified in prohibiting proceedings in an inferior tribunal.
Thus, our inquiry in this case is whether Troiani has established the existence of any circumstances which would sanction the issuance of a writ of prohibition.
The circumstances under which a writ of prohibition may properly issue were reviewed in Carpentertown Coal & Coke Co. v. Laird, 360 Pa. 94, 102, 61 A. 2d 426, 430 (1948):
*183 The writ of prohibition is one which, like all other prerogative writs, is to be used only with great caution and forbearance and as an extraordinary remedy in cases of extreme necessity, to secure order and regularity in judicial proceedings if none of the ordinary remedies provided by law is applicable or adequate to afford relief. It is a writ which is not of absolute right but rests largely in the sound discretion of the court. It will never be granted where there is a complete and effective remedy by appeal. ...
We do not think that the trouble and expense caused to appellee Akron in participating in a Commission proceeding leading to a final and appealable order makes the remedy of appeal less than adequate. That expense is ‘part of the social burden of living under government,’ Bradley Lumber Co. v. National Labor Relations Board, 84 F.2d 97, 100 (5th Cir. 1936), and is an ‘inadequate basis for intervention whether by mandamus or injunction’. Whitehouse v. Illinois Central Railroad Co., 349 U.S.*185 366, 374, 99 L.Ed. 1155 (1955) (.Frankfurter, J.).
If the PUC is improperly asserting jurisdiction in these proceedings, Troiani can raise the issue through the normal appellate process and, by so doing, will suffer no greater hardship than any other litigant seeking appellate review.
Troiani has also failed to establish that the PUC’s assertion of jurisdiction is clearly erroneous. That Troiani has been able to formulate a legal argument to the effect that the Second Class County Act vests exclusive jurisdiction over this matter in the Port Authority of Allegheny County does not render the PUC’s assertion of jurisdiction clearly erroneous. An arguably erroneous assertion of jurisdiction, is not á clearly erroneous assertion thereof.
Moreover, even if a writ of prohibition could issue in instances of arguably erroneous assertions, we would not necessarily be persuaded by Troiani’s jurisdictional argument. Troiani argues that the reasoning of Erie-Western Pennsylvania Port Authority v. Rugare, 29 Pa. Commonwealth Ct. 83, 370 A.2d 768 (1977), “controls the instant action so as to compel the conclusion that the Port Authority of Allegheny County alone has jurisdiction over the activities of Troiani Brothers.” In Rugare, s%ipra, we held that the exercise of regulatory authority by the Erie-Western Pennsylvania Port Authority, acting pursuant to the Third Class City Port Authority Act,
Finally, Troiani’s early action in this case belies its present assertion that the PTJC’s exercise of jurisdiction, at least over the application, is clearly erroneous. Troiani itself applied to the PUC for a certificate of public convenience, an action which seems to indicate that the question of PUC jurisdiction in these proceedings is one over which reasonable legal minds may differ.
Accordingly, we sustain the PUC’s preliminary objections and dismiss Troiani’s petition for review.
Order
Now, June 21, 1978, the preliminary objections of the Pennsylvania Public Utility Commission are sustained and the petition for review of Troiani Brothers, Inc. is dismissed.
Section 401 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. §211.401.
Act of May 28, 1937, P.L. 1053, as amended.
The complaint was “adopted” by the PUC on January 13, 1977, and “entered” by the PUC on March 2, 1977.
Although neither party has raised the issue, and although we shall address the merits of the PUC’s preliminary objections to Troiani’s petition for review, some doubt exists as to whether any action thus far undertaken by the PUC in these proceedings constitutes an “order” within the meaning of Section 1111. While the Supreme Court has concluded that an order of the PUC setting a hearing, on an application for a certificate is “an order as is within the contemplation of §1111 of the Public Utility Code,” Pennsylvania Public Utility Oomm’n v. Allegheny County Port Aulh., 433 Pa. 495, 500,'252 A.2d 367, 370 (1969), it could be argued that the proceedings in the case at bar have not yet reached even that germinal stage.
Act of April 6, 1956, P.L. (1955) 1414, as amended, added by Section 13 of the Act of October 7, 1959, P.L. 1266, as amended.
Act of December 6, 1972, P.D. 1392.