Pennsylvania R. Co. v. Pennsylvania Public Utility Commission

• Decision Date: 18 May 1959
• Citation: 396 Pa. 34,152 A.2d 422
• Parties: PENNSYLVANIA RAILROAD COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellant, and City of Philadelphia and City of Pittsburgh, Intervenors. Appeal of CITY OF PHILADELPHIA. Appeal of PENNSYLVANIA PUBLIC UTILITY COMMISSION.
• Court: Pennsylvania Supreme Court

Page 422

152 A.2d 422

396 Pa. 34

PENNSYLVANIA RAILROAD COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellant, and City of Philadelphia and City of Pittsburgh, Intervenors.

Appeal of CITY OF PHILADELPHIA.

Appeal of PENNSYLVANIA PUBLIC UTILITY COMMISSION.

Supreme Court of Pennsylvania.

May 18, 1959.

Rehearing Denied June 3, 1959.

Thomas M. Kerrigan, Counsel, Harrisburg, Edward Munce and Louis J. Carter, Asst. Attys. Gen., Edward Friedman, Deputy Atty. Gen., for Pennsylvania Public Utility Commission.

David Berger, City Sol., Alan Miles Ruben, Asst. to City Sol., James L. J. Pie, Asst. City Sol., Philadelphia, for City of Philadelphia.

John B. Prizer, Windsor F. Cousins, Harris J. Latta, Jr., Philadelphia, for Pennsylvania Railroad.

David Stahl, City Sol., Mead J. Mulvihill, Jr., Asst. City Sol., Pittsburgh, for City of Pittsburgh.

George C. Doering, Baltimore, Md., David P. Reese, Harrisburg, Gordon E. Neuenschwander, Pittsburgh, Lockwood W. Fogg, Jr., Philadelphia, for Baltimore & Ohio R.R.

CHARLES ALVIN JONES, Chief Justice.

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 organized to render. In Knup v. City of Philadelphia, 1936, 386 Pa. 350, 353, 126 A.2d 399, 400, we stated that 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.'

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 controvery. The same is equally true of rules of court. In Tribune Review Publishing Co. Case, 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 P.S. § 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 the Superior Court.' (Emphasis supplied). A proceeding before the Commission is instituted with the filing of a complaint. If the complaint be to a regulation promulgated by the Commission, it is cognizable only after the regulation has been applied to the complaining and allegedly aggrieved party. Section 1001 of the Act of May 28, 1937, P.L. 1053, 66 P.S. § 1391, provides that 'Any public utility * * * may complain of any regulation or order of the commission, which the complainant is or has been required by the commission to observe or carry into effect.' (Emphasis supplied). No such order was ever entered in this case. The appellant railroad had not been directed by an order of the Commission either to observe or carry into effect any ruling of the Commission under Rule 10 with respect to the appellant's scheduled train service. It is plain enough that there is no statutory authority for an appeal to the Superior Court from a regulation promulgated by the Public Utility Commission which has not been applied to the party seeking to invalidate it.

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.

McBRIDE J., took no part in the consideration or decision of this case.

BELL, Justice (dissenting).

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. ¹

'An application shall be filed with and approved by the Commission prior to ² the removal, elimination, or substantial change in the schedule of any passenger train [with exceptions which are not here pertinent].'

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. ³ It is well established that a public utility has the right to manage its own affairs to the fullest extent consistent with the public interest, and while the State or the Public Utility Commission may regulate, 'it is not the owner of the property of public utility companies, and is not clothed with the general power of management incident to ownership': Southwestern Bell Telephone Co. v. Public Service Commission, 262 U.S. 276, 289, 43 S.Ct. 544, 547, 67 L.Ed. 981. Also Northern Pennsylvania Power Co. v. Pennsylvania Public Utility Commission, 333 Pa. 265, 268, 5 A.2d 133; Coplay Cement Manufacturing Co. v. Public Service Commission, 271 Pa. 58, 114 A. 649, 16 A.L.R. 1214; Lower Chichester Township v. Pennsylvania Public Utility Commission, 180 Pa.Super. 503, 511, 119 A.2d 674; Abington Electric Co. v. Pennsylvania Public Utility Commission, 131 Pa.Super. 200, 198 A. 906; Hostetter v. Public Service Commission, 110 Pa. Super. 212, 168 A. 493. Until the promulgation of Rule 10, the position of the Commission had always been: 'The adjustment of schedules to meet demand for service is primarily a function of management. This Commission will not intervene unless the rescheduling is unreasonable and adverse to the public interest.': Diffenderfer v. Safeway Trails, 31 Pa.P.U.C. 456. See also City of Wilkes-Barre v. White Transit Co., 33 Pa.P.U.C. 758.

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, 145 A.2d 172. While the Public Utility Commission is expressly authorized to supervise and regulate public utilities in the public interest, ⁴ its jurisdiction, powers, rules, orders and regulations are subject to and are limited by the Constitution and the pertinent statutory and decisional law: Lancaster Transportation Co. v. Pennsylvania Public Utility Commission, 169 Pa.Super. 284, 295, 82 A.2d 291.

Section 202(d) of the Public Utility Law of 1937, 66 P.S. § 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 * * *'

The Railroad contends that the removal, elimination or curtailment in its passenger train service is not an 'abandonment' of service; that abandonment of service occurs only upon the removal or elimination of the last train; that there is no provision in the Public Utility Law requiring a railroad to obtain prior approval of a 'curtailment' in its train service; and that §§ 404, 412, 413 and 1008, 66 P.S. §§ 1174, 1182, 1183, 1398, which expressly provide (respectively) for time schedules, standards of service, adequate service, and Commission orders after investigation--all, after reasonable notice and hearing--further demonstrate that the Public Utility Commission was without authority to promulgate the 'curtailment' provisions of Rule 10.

It may help clarify the questions involved if we point out that the Railroads do not deny the power of the Commission to regulate passenger train service in...