Pennsylvania R. Co. v. Pennsylvania Public Utility Commission

• Decision Date: 13 September 1962
• Parties: The PENNSYLVANIA RAILROAD COMPANY, Appellant, v. The PENNSYLVANIA PUBLIC UTILITY COMMISSION.
• Court: Pennsylvania Superior Court

184 A.2d 111

199 Pa.Super. 158

The PENNSYLVANIA RAILROAD COMPANY, Appellant, v. The PENNSYLVANIA PUBLIC UTILITY COMMISSION.

Superior Court of Pennsylvania.

September 13, 1962.

[Copyrighted Material Omitted]

Carl Helmetag, Jr., Philadelphia, for appellant.

Louis J. Carter, Asst. Counsel, Joseph I. Lewis, Chief Counsel Harrisburg, Peter Platten, Hamilton C. Connor, Jr., of Ballard Spahr, Andrews & Ingersoll, Philadelphia, Edward F Cantlin, and J. H. Ward Hinkson, Chester, for intervening appellees.

Before RHODES, P. J., and ERVIN, WRIGHT, WOODSIDE, MONTGOMERY and FLOOD, JJ.

FLOOD, Judge.

Over the rotest of the Pennsylvania Railroad Company the Pennsylvania Public Utility Commission issued certificates of

Over the protest of the Pennsylvania Suburban Transportation Company (Red Arrow) and the Philadelphia Transportation Company (PTC) to operate a joint through bus service from Ardmore Montgomery County, to 5th and Chestnut Streets in Philadelphia. Service along that part of the route in Philadelphia, from 54th Street and City Line to City Hall had been furnished theretofore in the morning and late afternoon hours by PTC's Bus Route 44. Service along the part from Ardmore to 54th Street and City Line had been furnished by Red Arrow as part of its Bus Route I. Persons who wished to go by bus from Ardmore to Central Philadelphia could have done so before over substantially the same route by making a change at City Line. There were, however, no transfer privileges between the two routes.

The net result of the protested certificates is that a passenger may, under the joint route, make an uninterrupted trip from Ardmore to any point along the former PTC Route 44 and along Market Street from City Hall to 5th Street, whereas previously he had to take one of the lines from Ardmore to City Line and then change to the other line for the balance of the ride to City Hall, but without transfer privileges. There will be service on the joint route throughout the day five days a week and on Wednesday evenings.

1. There is a preliminary dispute as to whether the proposed joint operation must be authorized by a certificate of public convenience issued by the commission.

The commission contends that a certificate is unnecessary because of the provisions of Sections 401 to 405 of the Public Utility Law, 66 P.S. §§ 1171-1175, requiring every public utility to furnish adequate service and make such extension and improvements as shall be necessary or proper for the convenience of the public in conformity with the regulations and orders of the commission (§ 401, 66 P.S. § 1171); to make such arrangements for adequate service for the accommodation, convenience, and safety of the public as the commission may require (§ 403, 66 P.S. § 1173); to make convenient adjustments and arrangement of schedules with those of like contiguous or connecting common carriers whenever the commission shall deem it necessary or proper for the accommodation convenience and safety of the public (§ 404, 66 P.S. § 1174) and to 'construct and maintain, whenever the commission may, after hearing had upon its own motion or upon complaint, require the same, such switch or other connections with or between the lines of a like common carrier, where the same is reasonably practical, to form a continuous line of transportation, and to cause the transportation of passengers or property between points within this commonwealth to be without unreasonable interruption or delay, and shall establish through routes and service therein, and joint rates applicable thereto, and, where practicable, shall transport passengers or property over the same without transfer from the originating facilities.' (§ 405(a), 66 P.S. § 1175(a)).

These sections give the commission broad power to authorize or require carriers whose lines meet at any point to establish a jointly operated route over territory only part of which each is authorized to serve singly, but there is nothing in the language of the statute which permits such carriers to establish a joint route without a certificate of public convenience from the commission. With regard to motor carriers of freight, the establishment of through routes and interchange privileges has been held to require a certificate granted after proof that it is necessary or proper for the public service: Lancaster Transportation Co. v. Pennsylvania Public Utility Comm., 169 Pa. Super. 284, 82 A.2d 291 (1951); Motor Freight Express v. Pennsylvania Public Utility Comm., 180 Pa.Super. 622, 121 A.2d 617 (1956). Nothing in the public utility law indicates that there should be a different rule with regard to motor carriers of passengers. On the contrary, Section 202 of the Public Utility Law, 66 P.S. § 1122, would seem definitely to require commission authorization. However, we need not decide this question since a certificate of public convenience was actually granted and the evidence sustains the commission's action in granting it.

2. The commission found that the proposal of the applicants to do in one joint operation what they are now authorized to do separately in disjointed segments 'will result in the elimination of needless inconvenience, hazard, and waste of time, all to the benefit and convenience of the public'. The railroad assails this finding as not consistent with the evidence.

It must be remembered that the heart of the application is the combination of two existing services the necessity for each of which has been presumably already demonstrated. We must also consider the mandate as to contiguous carriers in Section 405 of the Public Utility Law, 66 P.S. § 1175, above quoted, requiring them to establish through routes without transfer and joint rates when the commission requires them to do so, either upon complaint or upon its own motion. It is to be noted, too, that the commission's authority to direct continuous service exists under § 405 whenever it is 'reasonably practical', and is not restricted to cases where the commission deems it 'necessary or proper for the accommodation, convenience and safety of the public' as in §§ 401, 403 and 404.

The railroad contends that the new line caters to an entirely new group of persons and that there was no testimony that anyone had used the two existing lines by transfer at 54th Street and City Line to go from the Main Line to central Philadelphia, that there were no coordinated schedules to make such use feasible, and that the only evidence of necessity offered was (1) the type of service offered, its rates and its purpose, (2) testimony of nine representatives of stores which the new bus route would serve, and (3) testimony by eight members of the public that they would use the service, only one of whom said she would use it in place of her present use of a private automobile.

We do not agree that this is not substantial evidence of necessity. Nor did it stand alone. There was testimony by the solicitor of Lower Merion Township that the township commissioners were in favor of the application and were of the opinion that the service would be of real value to a substantial number of the 60,000 inhabitants of the township. Mr. Frueh, whose expert qualifications in the field of public transportation were conceded by the railroad, testified that 24,826 people live within one-half mile of that part of the combined route lying west of the Expressway. In that area the bus stops are not more than 1000 feet apart, and they are closer where the concentration of population justifies. Representatives of the applicants testified that the component parts were operating successfully and that a field interview indicated that the combined operation would meet with public acceptance.

The railroad complains that the testimony of the applicants presented their case on the basis of a public need for express interurban service by way of the Schuylkill Expressway, and that the commission's conclusion that the avoidance of the disadvantages of an interchange justify the approval of the applications is legally unsupported and should be reversed. However, the fact that there would be no stops on the Expressway between City Line and Market Street was only one of the advantages stressed in the applicants' testimony. Mr. Juram did testify, for PTC, that the adoption of service over the Expressway on other PTC routes resulted in a very substantial increase in the number of riders and gave as an example the increase from 6,300 to 25,000 passengers per week on PTC's Route. A. But emphasis was also laid upon the transportation of persons from the Main Line to the Bala Shopping Center and other establishments along City Line, which does not involve transportation on the Expressway and is not express service. The applicants' witnesses also pointed out the advantages of the extension east of City Hall, which, for the first time, gives direct service from the Main Line to the department stores and other institutions located between City Hall and Fifth and Market Streets. They also suggested that the new service will attract not only persons who now drive their private automobiles to Bala or to points east of City Hall, but also persons who now do not make these trips at all because of the inconvenience.

The quantum of proof of need for the combination of the existing services which is necessary to justify the commission's order must be considered in the light of its broad discretion under § 405 to require the joint operation, without transfer, of two connecting routes when reasonably practical. In our opinion, the evidence of necessity was sufficient here.

3. The railroad next argues that the certificates should not have been granted without a showing and a specific finding of the inadequacy of the existing service.

Some...