Harrisburg Taxicab & Baggage Co. v. Pennsylvania Public Utility Commission

KELLEY, Judge,

dissenting.

I respectfully dissent.

The compliance reports issued by the PUC Enforcement Officers in this case state, inter alia, that Petitioner’s taxicabs were in violation of the PUC regulation found at 52 Pa.Code § 29.402(1).1 The compliance reports that indicated violations of Section 29.402(1) of the PUC’s regulations also referenced the DOT regulation found at 67 Pa.Code § 175.62.2

In affirming the PUC’s order denying Petitioner’s exceptions to these violations, the majority states “[t]he PUC’s decision to incorporate DOT’s regulations in an area where the two agencies possess overlapping authority is in no way inappropriate.” Majority Slip Op. at 8. To the contrary, I have not found any provision in the Public Utility Code which empowers the PUC to adopt and enforce the regulations of DOT by mere reference to them in its own regulations.

Indeed, as this Court has previously noted:

[T]he rulemaking power of administrative agencies is limited by statutory grant of authority and can only be conferred by clear and unmistakable language setting the exact bounds of the statutory grant. Volunteer Firemen’s Relief Association v. Minehart, 425 Pa. 82, 227 A.2d 632 (1967); Pennsylvania Medical Society v. State Board of Medicine, [118 Pa.Cmwlth. 635, 546 A.2d 720 (1988) ]. An agency’s authority to promulgate a regulation may rest upon a grant of power implicit in the enabling legislation; such implication, however, must be manifest. Pennsylvania Association of Life Underwriters v. Department of Insurance, 482 Pa. 330, 393 A.2d 1131 (1978) ...

Campo v. State Real Estate Commission, 723 A.2d 260, 262 (Pa.Cmwlth.1998).3

*295It is true that, pursuant to Section 1501 of the Public Utility Code, 66 Pa.C.S. § 15014, a public utility is under a continuing obligation to make all necessary repairs to its facilities5 for the safety of its patrons, employees and the public. In addition, pursuant to section 1504(1) of the Public Utility Code, 66 Pa.C.S. § 1504(1)6, the PUC is empowered to prescribe “just and reasonable standards” relating to the service and facilities of a public utility. Finally, pursuant to Section 501(b) of the Public Utility Code, 66 Pa.C.S. § 501(b)7, authorized representatives of the PUC may inspect or examine the facilities of a public utility.

However, as indicated above, I have found no provision in the Public Utility Code by which the General Assembly has specifically empowered the PUC to adopt and enforce the regulations of a different administrative agency. In the absence of such a manifest grant of authority, I would conclude that the PUC is not empowered to adopt and enforce the regulations of DOT. Accordingly, I would reverse that portion of the PUC’s order denying Petitioner’s exceptions to the purported violations of Section 29.402(1) of the PUC’s regulations.

. Section 29.402(1) of the PUC’s regulations states:

A common carrier or contract carrier may not permit a vehicle having a seating capacity of 15 passengers or less to be operated unless it complies with the following requirements:
(1) Vehicles shall comply with applicable Department of Transportation equipment inspection standards as set forth in 67 Pa. Code Chapter 175 (relating to vehicle equipment and inspection) at all times when the vehicle is being operated...

52 Pa.Code § 29.402(1).

. Section 175.62 states that "[e]very suspension component shall be in safe operating condition as described in § 175.80 (relating to inspection procedure).” It should be noted that, like Section 175.62, all of the equipment standards contained in Sections 175.61 to 175.78 of DOT’s regulations refer, in turn, to the equipment standards enunciated in Section 175.80 of DOT’S regulations. Section 175.80 of DOT’s regulations is entitled “Inspection procedure”, and it exhaustively outlines the procedures to be used, and the equipment standards to be applied, in conducting the required inspection of all vehicles used in the Commonwealth under the broad grant of authority expressed in Chapter 47 of the Vehicle Code, 75 Pa.C.S. §§ 4701-4982.

.See also Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., 510 Pa. 1, 18, 507 A.2d 1, 10 (1986) wherein the Pennsylvania Supreme Court stated:

[A]dministrative agencies may exercise only the powers and authority conferred on them either expressly, or by necessary implication, by the Legislature. Commonwealth v. Butler County Mushroom Farm, 499 Pa. 509, 513, 454 A.2d 1, 4 (1982); Commonwealth v. J. & A. Moeschlin, Inc., 314 Pa. 34, 170 A. 119 (1934); Day v. Public Service Commission, 312 Pa. 381, 167 A. 565 (1933). " 'The power and authority to be exercised by administrative commissions must be conferred by legisla-*295live language clear and unmistakable. A doubtful power does not exist. Such tribunals are extra judicial. They should act within the strict and exact limits defined.' " Pennsylvania Human Relations Commission v. St. Joe Minerals Corporation, 476 Pa. 302, 310, 382 A.2d 731, 735-36 (1978) (quoting Green v. Milk Control Commission, 340 Pa. 1, 3, 16 A.2d 9, 9 (1940)). Substantive rulemaking by administrative agencies is proper provided that the statutory delegation of power can reasonably be construed as authorizing it. Hospital Association of Pennsylvania v. MacLeod, 487 Pa. 516, 521, 410 A.2d 731, 733 (1980). These principles are well established.

. Section 1501 states, in pertinent part:

Every public utility shall furnish and maintain adequate, efficient, safe, and reasonable service and facilities, and shall make all such repairs ... and improvements in or to such service and facilities as shall be necessary or proper for the accommodation, convenience, and safety of its patrons, employees, and the public... Such service and facilities shall be in conformity with the regulations and orders of the commission. ..

66 Pa.C.S. § 1501.

. In pertinent part. Section 102 of the Public Utility Code defines "facilities” as:

All the plant and equipment of a public utility, including all tangible ... personal property without limitation, and any and all means and instrumentalities in any manner owned, operated, ... licensed, used, controlled, furnished, or supplied for, by, or in connection with the business of any public utility...

66 Pa.C.S. § 102.

. Section 1504(1) states:

The commission may, after reasonable notice and hearing, upon its own motion or upon complaint:
(1) Prescribe as to service and facilities ... just and reasonable standards, classifications, regulations and practices to be furnished, imposed, observed and followed by any or all public utilities.

66 Pa.C.S. § 1504(1).

. Section 501(b) states:

(b) Administrative authority and regulations. — The commission shall have general administrative power and authority to supervise and regulate all public utilities doing business within this Commonwealth. The commission may make such regulations, not inconsistent with law, as may be necessary or proper in the exercise of its powers or for the performance of its duties.

66 Pa.C.S. § 501(b).