West Penn Railways Co. v. Pennsylvania Public Utility Commission

• Decision Date: 07 October 1940
• Docket Number: 251-1940
• Citation: 142 Pa.Super. 140,15 A.2d 539
• Parties: West Penn Railways Company, Appellant, v. Pennsylvania Public Utility Commission
• Court: Pennsylvania Superior Court

15 A.2d 539

142 Pa.Super. 140

West Penn Railways Company, Appellant, v. Pennsylvania Public Utility Commission

No. 251-1940

Superior Court of Pennsylvania

October 7, 1940

Argued May 1, 1940.

Appeal from order of Public Utility Commission, Application Docket No. 35546, in case of West Penn Railways Company v Pennsylvania Public Utility Commission.

Proceeding before Public Utility Commission, upon remission of the record from the appellate court to determine what, if any conditions were to be imposed upon the company in granting approval of abandonment of part of line.

The facts are stated in the opinion of the Superior Court.

Supplemental order entered, promulgating conditions of commission to its consent to abandonment. Company appealed.

Error assigned, among others, was order.

Order affirmed.

Edward O. Tabor, with him Charles L. McCormick, for appellant.

Samuel Graff Miller, with him Solomon Freedman and Harry M Showalter, for appellee.

Thomas C. Evans, with him Harry K. Daugherty, George W. Keitel, Assistant Deputy Attorney General, and Claude T. Reno, Attorney General, for intervenor.

Frank Butler, Assistant County Solicitor, with him Walter P. Smart, County Solicitor, for intervenor.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, Rhodes and Hirt, JJ.

OPINION

Rhodes, J.

This is the second time this case has been brought before us by the West Penn Railways Company, the appellant. On the first appeal we set aside six conditions in the order of the commission, and remitted the record for further hearing; our opinion is reported in West Penn Railways Co. v. Pennsylvania Public Utility Commission, 135 Pa.Super. 89, 4 A.2d 545, and the essential facts appearing in the record are stated therein.

On appeal from the commission's first order we granted a supersedeas on June 2, 1938, allowing appellant to cease its operations in the McKeesport division upon its executing a $ 70,000 bond conditioned upon the performance by appellant of such obligations as to removal of facilities, paving, and burning off rail heads as might be finally determined upon appeal, and conditioned further that it kept its rails, paving, and facilities along the line of its tracks here involved in safe condition. Upon remission of the record, the commission thereafter set the case down for further hearing to determine what, if any, conditions were to be imposed upon appellant in granting approval of abandonment in the McKeesport division outside the city of McKeesport; the conditions to be in conformity with existing franchises, contractual obligations and legal duties of appellant, and such as would not "raise the standard of [appellant's] duty fixed by law," or "interfere with the constitutional and statutory powers of the municipalities."

At the rehearing on May 10, 1939, the Department of Highways, County of Allegheny, and municipal subdivisions affected by the abandonment of appellant's line appeared as interested parties. Testimony was taken with respect to conditions of the tracks, etc., and appellant's franchises and contracts with municipal authorities were put in evidence. At the rehearing there was ample testimony showing that the abandoned track area involved caused hazard to the traveling public.

Based on the evidence, the commission, by the supplemental order dated December 18, 1939, promulgated twelve conditions to its consent to abandonment by appellant of the McKeesport division outside the city of McKeesport, requiring removal of tracks, ties and other facilities, removal and burning off rail heads, paving, resurfacing between rails where conditions of the road bed were hazardous to public travel, and in some cases the granting of quitclaim deeds of rails and ties to municipalities, such procedure to be optional with appellant in lieu of removing such rails and ties and resurfacing the affected area, and surrendering existing franchises.

From this supplemental order appellant took this appeal. The Department of Highways and the County of Allegheny intervened as appellees.

Appellant, prior to the second hearing before the commission, in pursuance to the above supersedeas, removed certain essential portions of its track and facilities and presently maintains, as part of its argument, that, since appellant has ceased to operate its facilities in the McKeesport division of appellant company, it is there not a public utility within the meaning of the Public Utility Law of May 28, 1937, P. L. 1053, as amended, 66 PS § 1101 et seq.; that the commission's jurisdiction in the present case is limited to transportation service; and that the moment such service ended the jurisdiction of the commission ended.

But the questions involved as stated by appellant present no question not raised by it in the first appeal. ^[1] We held in West Penn Railways Co. v. Pennsylvania Public Utility Commission, supra, 135 Pa.Super. 89, at page 100, 4 A.2d 545, at page 550, that: "The commission may, under section 203(a), 66 PS § 1123, of the Public Utility Law, attach conditions to abandonment of the tracks and service of a street railway company, but such conditions cannot raise the standard of duty fixed by law. The conditions which may be imposed must be reasonable and be supported by the evidence, and they cannot interfere with the constitutional and statutory powers of the municipalities." We did not sustain the conditions in the order, but we remitted the record that the commission might attach proper conditions to its consent to the abandonment of a portion of appellant's line and service, and we held that the commission could take into consideration appellant's franchises and contractual obligations so that such conditions might be proper under the franchises and contracts which it had with various municipal authorities.

Here, as on the first appeal, appellant argues that the commission may not legally condition abandonment except as the conditions are related to service. We repudiated appellant's previous argument that there was any such limitation of the commission's powers, and we do so again.

And appellant, for the second time in this controversy, questions the commission's jurisdiction and power to impose, in effect, any conditions, and presents the same argument in extenso as it offered to us before.

Appellant does not submit as a question involved the justness or reasonableness of the conditions imposed by the commission in its supplemental order of December 18, 1939, but again argues that they are unjust and unreasonable because beyond the power of the commission to impose.

The power of the commission, in granting a certificate of public convenience for abandonment, to impose conditions not confined to service was decided in appellant's first appeal. The commission's power to impose conditions in granting approval of abandonment of a portion of appellant's line and service under sections 202 and 203 of the Public Utility Law of May 28, 1937, P. L. 1053, 66 PS §§ 1122, 1123, is not limited to matters of service, but conditions may on proper occasion relate to the safety of the public.

If we erred in holding in West Penn Railways Co. v. Pennsylvania Public Utility Commission, supra, that the commission had this power, and in remitting the record for the imposition of proper conditions (which direction the commission now has followed), then appellant should have sought a review of our decision by the Supreme Court of Pennsylvania. No petition for an allocatur was presented to the Supreme Court, nor did appellant seek a reargument before us. Without going further, this appeal might well be dismissed. See Eaton v. New York Life Insurance Co. of New York, 318 Pa. 532, 179 A. 67; Ottman et al. v. Albert Co. et al., 327 Pa. 49, 60, 61, 192 A. 897 (concurring opinion); Reamer's Estate, 331 Pa. 117, 124, 200 A. 35; Bolton v. Hey et al., 168 Pa. 418, 421, 31 A. 1097; Cowen et al. v. Pennsylvania Plate Glass Co., 188 Pa. 542, 544, 41 A. 615. It is elementary that the scope of an appeal is limited to the statement of questions involved, and only assignments of error encompassed therein may be considered. Commonwealth v. Cauffiel , 298 Pa. 319, 148 A. 311.

We are inclined to believe that appreciation of the issue has been obscured rather than simplified by appellant's argument. One of its contentions throughout this controversy, and in both appeals, has been that the commission has no jurisdiction over appellant's "paving obligations after abandonment," or that the commission has no authority to fix paving and rail removal conditions after abandonment. We think the real issue may be stated thus: Can the commission impose just and reasonable conditions in granting a certificate of public convenience evidencing the approval of the commission for a public utility to abandon a part of its line and service, which conditions are not confined to transportation services, but relate to the safety of the general traveling public? Appellant's position on this basic question may be found in its argument that "the instant it abandoned service [which was by virtue of the supersedeas], it ceased to be a utility, within the meaning of the statute"; that "the commission has jurisdiction over the safety of that part of the 'public' who are patrons that use the facilities of the utility, as distinguished from the safety of the general public"; that "since there are here no patrons whose safety the commission is to guard, there is no 'safety' which is under the commission's jurisdiction"; that the "condition of a highway not connected with public service, is no concern of the commission."

The questions involved as stated by appellant and the argument which is predicated thereon appear to be based on an...