Arsenal Board of Trade v. Pennsylvania Public Utility Commission

• Citation: 72 A.2d 612,166 Pa.Super. 548
• Parties: ARSENAL BOARD OF TRADE v. PENNSYLVANIA PUBLIC UTILITY COMMISSION.
• Decision Date: 11 April 1950
• Court: Superior Court of Pennsylvania

72 A.2d 612

166 Pa.Super. 548

ARSENAL BOARD OF TRADE v. PENNSYLVANIA PUBLIC UTILITY COMMISSION.

Superior Court of Pennsylvania

April 11, 1950

Argued March 14, 1950.

Appeal, No. 59, April T., 1950, from order of Pennsylvania Public Utility Commission, Application Docket No. 74129, in case of Arsenal Board of Trade v. Pennsylvania Public Utility Commission.

Proceeding upon application for construction of crossings.

Order entered approving application. Protestant appealed.

Morris Zimmerman, with him Alexander Cooper, for appellant.

Charles E. Thomas, with him Jack F. Aschinger, William J Grove and Albert E. Luttrell, for appellee.

Samuel W. Pringle, with him A. M. Donnan, Wallace D Stewart and Dalzell, McFall, Pringle & Bredin, for intervening appellee.

Rhodes P. J., Hirt Reno, Dithrich, Ross and Arnold, JJ.

OPINION

RHODES J.

This is an appeal from an order of the Pennsylvania Public Utility Commission approving the application of the Pennsylvania Railroad Company for the construction of three crossings at grade in the City of Pittsburgh. Industrial siding tracks would cross at grade Liberty Avenue, Fourteenth Street, and Sixteenth Street, and provide rail connection with proposed warehouses to be constructed by the Company.

Following a hearing, the Commission by its order of June 6, 1949, denied the application. The Company presented a petition for rehearing, and, by order of July 25, 1949, rehearing was granted. After rehearing, at which additional testimony was submitted, and reconsideration, the Commission by its order of December 19, 1949, rescinded its prior order and approved the application.

The Commission found that the record, as supplemented, established the need for the construction of new warehouses in the City of Pittsburgh; that the most economical and reasonable method for the Company to provide railroad facilities at the location of its proposed warehouses was by means of the construction of the crossings at grade as originally proposed by the Company; and that the traveling public would be protected adequately by provisions regarding safety devices and by the restricted use and method of railroad operation, which are imposed upon the Company by the Commission's order.

The Arsenal Board of Trade, a nonprofit corporation, filed its petition for appeal in this Court on January 24, 1950. ^[1] We permitted the Company to intervene and be added as a party-appellee. On February 3, 1950, the interveningappellee filed its answer to the petition for appeal, and also filed a motion to quash the appeal of the Arsenal Board of Trade.

On April 14, 1949, appellant, by its secretary, had filed a protest "against the proposed railroad crossing at 16th and Liberty Ave., Pittsburgh" on the ground that "this crossing would be a detriment to the Lawrenceville business district." Appellant did not petition to intervene as a party before the Commission, and it filed no appearance in its own name or by counsel. Witnesses who identified themselves as representatives of appellant testified in their own behalf, as well as for the organization, in opposition to the Company's application, and mentioned alleged hazards to the traveling public that the proposed crossings would create. Testimony was received from a number of individuals and organizations in opposition to the construction of the crossings. Likewise, testimony was presented in support of approval of the project, including that of other utilities. The City of Pittsburgh and the Company had entered into an agreement approving the project.

We are of the opinion that the appeal must be quashed for want of a qualified appellant.

The record ^[2] contains nothing to indicate that appellant in its corporate capacity will be affected by the Commission's order, or that any prospective use of these crossings by its members will be other than in their individual capacities as members of the general public. The record is also devoid of evidence that the business of members of the appellant would be adversely affected by the proposed crossings.

Every person who files a protest in a proceeding pending before the Commission, and who is given an opportunity to testify, is not ipso facto a party to the proceedings with a right to maintain an appeal from the Commission's order. Cf. Seitz Liquor License Case, 157 Pa.Super. 553, 556, 43 A.2d 547; State Board of Undertakers v. Joseph T. Sekula Funeral Homes, Inc., 339 Pa. 309, 313, 14 A.2d 308; section 1001 of the Act of May 28, 1937, P. L. 1053, 66 PS § 1391. It may be that civic organizations such as appellant should have the right to intervene before the Commission, and also to appeal in utility cases which involve a community interest. But the statute here limits the right of appeal from the Commission's order to "any party to the proceedings affected thereby." Cf. Penn Harris Hotel Co. v. Pennsylvania Public Utility Commission, 166 Pa.Super. 394, 71 A.2d 853. Section 1101 of the Public Utility Law of May 28, 1937, P. L. 1053, 66 PS § 1431, provides as follows: "(a) Within thirty days after the service of any order by the commission, unless an application for a rehearing may be pending, and then within thirty days after the service of the order refusing such application, or the service of an order modifying, amending, rescinding, or affirming the original order, any party to the proceedings affected thereby may appeal therefrom to the Superior Court."

The right to appeal requires that an appellant be (1) a party to the proceedings, and (2) affected thereby. The matter of parties in admistrative proceedings is basically statutory. "Party to the proceedings" is not specifically defined. Whether a particular person shall have the right to contest administrative action is largely a question of law dependent upon a number of variable factors. Among them are the nature and the extent of the person's interest, the character of the administrative act, and the terms of the statute. A party to the proceedings is one who is a party in a legal sense, and who has been made or has become such in some mode prescribed or recognized by the law, so that he is bound by the proceeding. 31 Words and Phrases p. 319. Appellant did not become a party by intervention or by any other...