Pennsylvania Railroad v. Pennsylvania Public Utility Commission

Dissenting Opinion by

Rhodes, P. J.:

I find the majority opinion unacceptable for two basic reasons. First, it is tantamount to an advisory opinion in advance of the application of a regulation promulgated by the Pennsylvania Public Utility Commission;1 secondly, the advice that is given is an erroneous interpretation of the Public Utility Law as it relates to the power of the commission to make regulations in furtherance of the provisions of the law.

The commission by the promulgation of new Rule 10 supplemented its Railroad Regulations. This appeal, as the majority states, is taken from the “requirement” of the new rule. 1 think it is obvious that the appeal is not properly before this Court. The function of rule making is to be distinguished from action of a quasi judicial nature taken by the commission. Rule making is essentially legislative; the promulgation of a general rule applicable to all or a particular segment of the utilities in this Commonwealth is not *604in itself a function from which a direct appeal may he taken. It is true that rules and regulations are subject to judicial review, but only when they become involved in a justiciable proceeding.2 Cf. Lancaster Transportation Company v. Pennsylvania Public Utility Commission, 169 Pa. Superior Ct. 284, 82 A. 2d 291. The distinction between the quasi-judicial function and the rule making function of the commission was fully discussed in W. J. Dillner Transfer Company v. Pennsylvania Public Utility Commission, 186 Pa. Superior Ct. 526, 531, 142 A. 2d 419. We there determined that the rule making function being legislative in character is not such as to require even the procedural due process requirements of notice and hearing. If notice and hearing are not required, it necessarily follows that an appeal may not be taken. The fact that the commission in the present case did afford a hearing does not change the essential nature of the proceeding. The hearing was equivalent to the hearings held by the Legislature to gain information upon which to formulate needed legislation. It cannot be said that it was a hearing of the judicial type affecting the rights of individual railroads as distinguished from all railroads, or that the railroads were “parties” to the proceedings in the usual sense. This appeal from the promulgation of the general rule or regulation is comparable to an appeal taken directly from the enactment of a statute by the Legislature; such an appeal is premature and improper.3 To render an opinion on *605this appeal is simply to give advice in advance of the application of the rale to a specific utility. See Pittsburgh v. Pennsylvania Public Utility Commission, 157 Pa. Superior Ct. 595, 598, 43 A. 2d 348. I would therefore quash the appeal.

Furthermore, as I view it, the majority clearly has erred in its interpretation of the powers of the commission under the Public Utility Law in this instance. Eule 10 relates to the “Curtailment of Service” and provides that, with certain exceptions, “An application shall be filed with and approved by the Commission prior to the removal, elimination, or substantial change in the schedule of any passenger train . . .” The rule in this respect is a limited one. It does not require prior application or approval for every change in the schedule such as those normally made in the institution of daylight saving time or the reversion to standard time. The rule applies only to the “removal, elimination, or substantial change” in service, that is, a reduction in the level of service provided to the public. Presumptively the existing service is necessary to the public interest. “Service” is an extremely broad concept in the Public Utility Law; it includes “any and all things furnished or supplied, and any and all facilities used, furnished, or supplied by public utilities, . . .” Section 2 (20) of the Law, 66 PS §1102 (20). There is no doubt that the furnishing of each and every train appearing on the schedule of a railroad is a service within the meaning of the Law; and, under section 401 of the Law, 66 PS §1171, it is a service which the utility must maintain at an adequate, efficient, safe, and reasonable level. See, also, section 403 of the Law, 66 PS §1173. In order that a utility may not of its own accord eliminate all or any part of the service which it renders, the Legislature set forth a requirement that approval of the commission be obtained in *606advance for any such diminution. Section 202 (d) of the Law, 66 PS §1122, very definitely provides: “Upon approval of the commission, evidenced by its certificate of public convenience first had and obtained, and upon compliance with existing laws, and not otherwise, it shall be lawful: ... (d) For any public utility to dissolve, or to abandon or surrender, in whole or in fart, any service, right, power, franchise, or privilege: . . .” (Italics supplied.) It seems obvious that the removal or elimination of a passenger train from an existing schedule is an abandonment of a service. Of the same nature is the substantial change in the schedule of a train. If a train normally running at a certain time is re-scheduled to run at a time substantially different than its original time, it is tantamount to an elimination of the original service. The majority unduly restricts the application of section 202 (d) of the Law, 66 PS §1122, to the complete cessation of service.4 The language of this section distinctly indicates that it is much broader, applying not only to the complete cessation of service but also to the cessation of service “in whole or in part.” See New Castle v. Pennsylvania Public Utility Commission, 172 Pa. Superior Ct. 569, 571, 94 A. 2d 57. Since the elimination of a train or trains comes within the provision of section 202 (d) of the Law, it is also apparent that the commission, acting under the administrative and rule making powers granted by sections 901 and 902 of the Law, 66 PS §.§1341, 1342, had the authority to promulgate Rule 10, not inconsistent with the Law, as necessary and proper for the performance of its duties under the Law. Of course, there are limitations on the power of the com*607mission to promulgate regulations as this Court pointed out in W. J. Dillner Transfer Company v. Pennsylvania Public Utility Commission, supra, 186 Pa. Superior Ct. 526, 532, 142 A. 2d 419.5 But none of the restrictions or limitations mentioned in the Dillner case or prior cases are applicable to the present situation. Here the commission has acted within the limitations of the Public Utility Law and in furtherance of it.

Consequently, I am compelled to dissent from the action of the majority in depriving the commission of its obvious power, and also from the failure of this Court to quash the appeal on its own motion as premature.

Gunther, J., joins in this dissent.

“Organically, courts are not instituted to render advisory opinions either by way of a declaratory judgment or otherwise; . . .” Schoenbrun v. Nettrour, 360 Pa. 474, 476, 61 A. 2d 868, 869,

See Pennsylvania, Railroad, Company v. Driscoll, 336 Pa. 310, 9 A. 2d 621; United States v. Berwind-White Coal Mining Company, 274 U. S. 564, 47 S. Ct. 727, 71 L. Ed. 1204.

Although the language in section 1112 of the Public Utility Law, 66 PS §1442, is broad, it does not appear that the promulgation of a rule by the commission is such an act which is conclusive upon utilities so as to permit them to take a direct appeal therefrom.

Appellant recognizing that a certificate of public convenience is required for the abandonment of intrastate passenger train service contends that approval for scheduled changes and train curtailments short of abandonment of service is not required.

While it is not necessary for the commission to give notice and hold a hearing prior to promulgating the rule or regulation, it would be necessary to satisfy the procedural requirements of due process when the rule or regulation is involved in a particular proceeding. W. J. Dillner Transfer Company v. Pennsylvania Public Utility Commission, 186 Pa. Superior Ct. 526, 588, 142 A. 2d 419.