I would affirm the final order of the commission. In the first place, as I view it, a fundamental error in the majority opinion is the conclusion "that the Commission overstepped the bounds of proper regulation and assumed the role of manager in directing the change in service." The discretionary power of management is limited to the internal affairs of the utility, which do not affect the public interest; and the commission's *Page 328 power to regulate extends to the relationship of the utility to the public. The use of the "automatic cut-off" in this case falls in the latter category; and it is not a question whether new methods of furnishing service should or should not be adopted. The question is whether appellant's service, as now restricted, is adequate, reasonable, and efficient; and this can be determined only by the facts which relate to that particular service and not by comparison of use of the device under unrelated circumstances.1 In the final order the commission said (601a) that "The record definitely shows that respondent's installation of the automatic cut-off was not motivated by a desire to eliminate interference to its subscribers, but that the device was primarily installed for the purpose of economy in the construction of the exchanges in the Johnstown area," and (616a) that "the extension of unlimited service to individual line subscribers will permit optional service to respondent's subscribers according to their need, desire and willingness to pay for the class of service."2 The definition of a message in appellant's tariff can have no application or relevancy to the unauthorized practice of terminating telephone connections. I am in accord with what the commission said in summarizing as to this (602a): "In either event, we find that respondent's practice of terminating telephone service is in violation of the rules and regulations of respondent as set forth in its filed and effective tariffs. . . . . ." *Page 329
In the instant case appellant has attempted to make its own interpretation of the scope of its rights and prerogatives in rendering service to the public, and it has acted accordingly. Such conduct, we have held, would result in the subordination of the public interest largely to a utility's discretionary action.West Penn Rys. Co. v. Pa. P.U.C., 142 Pa. Super. 140, 155,15 A.2d 539.
It is significant that appellant, without any notice to its subscribers or to the commission either by publication or change in its tariffs, changed the unlimited service to party and individual line subscribers to a limited service with respect to the duration of the calls without any reduction in rates. In support of this action appellant contends that in this proceeding, which was upon motion of the commission and involved the service of the utility, the burden of proof was upon the commission, and in its brief says "that the Commission entirely failed to carry the burden in this case which the law places upon it." Section 420, art. 4, of the Public Utility Law of May 28, 1937, P.L. 1053, 66 P. S. § 1190, reads as follows: "Burden of Proof in Proceedings Involving Service or Facilities. In any proceeding upon the motion of the commission, involving the service or facilities of any public utility, the burden of proof to show that the service and facilities involved are adequate, efficient, safe, and reasonable shall be upon the public utility."
The commission was certainly not required to approve appellant's new service, and I think it would have been fully justified in making a finding to the effect that appellant had not met its burden of proof.
The commission had before it many witnesses and numerous exhibits. After an exhaustive discussion of the evidence and the evidentiary facts, the commission found (616a): "In view of the foregoing, we find that respondent's practice of terminating local messages to *Page 330 individual line subscribers on its Johnstown exchanges is unreasonable, arbitrary and in violation of Section 401 of the Public Utility Law and that the practice of terminating local messages to party line subscribers is not unreasonable nor arbitrary and not in violation of Section 401 of the Public Utility Law for the duration of the present emergency. Accordingly, this order relates to circumstances existing at this time and we will defer the final disposition of all of the matters involved in this proceeding to such time when the present emergency has ceased."3
The majority opinion says that "the findings and the order of the Commission are not founded upon, nor supported by, competent evidence." The record, in my judgment, does not warrant this statement. It was voluminous, and a reasonable appraisal of the evidence indicates that it fully supported the findings and order of the commission; there was testimony both for and against the device. The final order of the commission (593a-617a) discloses that it considered all the evidence and the contentions of the parties, and sets forth the specific reasoning which led to the ultimate finding that the service of appellant is unreasonable and arbitrary.4 I fail to see what more the commission could *Page 331 have done in making its findings of fact and its order, and I think the order of the commission complies with the law in every respect. See Cage et al. v. Public Service Commission, 125 Pa. Super. 330, 189 A. 896. "The question before the commission was largely an administrative one which must be left to the sound judgment and discretion of the commission, and its decision if based upon such substantial evidence will not be disturbed by this court unless it is so capricious, arbitrary, or unreasonable as to amount to error of law or a violation of constitutional rights. John Benkart Sons Co. v. Pennsylvania Public Utility Commission, 137 Pa. Super. 13, 17, 7 A.2d 588; Consolidated Edison Co. et al. v. National Labor Relations Board,59 S. Ct. 206, 305 U.S. 197, 299, 83 L. Ed. 126, 140. We have frequently stated that this court is not a second administrative body, and that we have no power to substitute our judgment for that of the commission in the decision of such matters, and reverse the determination of the commission unless the order is capricious, arbitrary, or unreasonable, an error of law or a violation of constitutional rights. Sherman et al. v. Public Service Commission et al., 90 Pa. Super. 523, 526; Philadelphia Rural Transit Co. v. Public Service Commission,103 Pa. Super. 256, 260, 158 A. 589. It is also provided in section 1107, art. 11, of the Public Utility Law of May 28, 1937, P.L. 1053, 66 P. S. § 1437, as follows: `The order of the *Page 332 commission shall not be vacated or set aside, either in whole or in part, except for error of law or lack of evidence to support the finding, determination, or order of the commission, or violation of constitutional rights'":5 Cole et al. v.Pennsylvania Public Utility Commission, 146 Pa. Super. 257, at page 263, 22 A.2d 121, at page 123.
It seems to me that the majority opinion constitutes a deviation by this court from a statutory mandate which has been frequently acknowledged — we may reverse an order only for error of law or lack of evidence to support the findings upon which the order is based (Infantino v. Pennsylvania Public UtilityCommission, 146 Pa. Super. 245, 250, 22 A.2d 108); and that the majority have substituted their judgment for that of the commission. It is the judgment of the commission and not of this court which determines whether the public interest will be served by appellant's action. As said in American Telephone TelegraphCo. et al. v. United States et al., 299 U.S. 232, at page 236,81 L. Ed. 142, at page 147: "This court is not at liberty to substitute its own discretion for that of administrative officers who have kept within the bounds of their administrative powers. To show that these have been exceeded . . . . . . it is not enough that the prescribed system . . . . . . shall appear to be unwise or burdensome or inferior to another. Error or unwisdom is not equivalent to abuse. What has been ordered must appear to be `so entirely at odds with fundamental principles . . . . . .' as to be the expression of a whim rather than an exercise of judgment."
We do not sit in judgment on the commission's wisdom but only on its power. See Kurtz v. Pittsburgh et al., 346 Pa. 362, 367,31 A.2d 257. The effect of the *Page 333 majority opinion in reversing the commission is to subordinate the commission's jurisdiction and the public interest as determined within the commission's statutory power to the discretionary action of appellant — a public utility. If the commission under the Public Utility Law cannot deal effectively with the present problem, its usefulness as a regulatory body is seriously impaired, and adequate utility regulation is impossible.
1 This approach has been considered in the comprehensive report and order of the commission. See 611a, 612a.
2 "`The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.' Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286, 287, 78 L. Ed. 1260, 1264, 1265,54 S. Ct. 692; Swayne Hoyt v. United States, 300 U.S. 297, 303 et seq., 81 L. Ed. 659, 664, 57 S. Ct. 478": Rochester TelephoneCorp. v. United States et al., 307 U.S. 125, at page 146,83 L.Ed. 1147, at page 1161.
3 The order of the commission is as follows:
"1. That Pennsylvania Telephone Corporation, respondent, on or before December 28, 1942, file, to be effective January 1, 1943, supplements to its general tariff, Pa. P.U.C. No. 28, incorporating such changes and additions to its rules and regulations as may be necessary in order to conform with the Commission's findings herein set forth, and specifically establishing the extent of local message service, subject to automatic cut-off as rendered on respondent's Johnstown exchanges, by classes of consumers and exchange areas.
"2. That the practice of Pennsylvania Telephone Corporation in terminating local telephone conversations to individual line subscribers in its Johnstown exchanges, be discontinued from and after December 31, 1942."
4 "In most controversies there are two types of fact questions involved — questions as to evidentiary facts and questions as to ultimate facts. The first involve the `raw elements' of the case, usually what the witnesses observed by their physical senses — what they saw, heard, and the like. The second have to do with the conclusions to be drawn from the evidentiary facts. The answers to both types, however, are determinations of fact under the accepted rule that an administrative agency's findings of fact are final if supported by substantial evidence": Fact and Law in Judicial Review, by Ray A. Brown, 56 Harvard Law Review 899, 902, May, 1943.
5 This portion of section 1107 of the Public Utility Law of 1937 has not been changed by the Act of July 3, 1941, P.L. 267, § 3,66 P. S. § 1437.