Anne X. Alpern, City Sol., John M. Marshall, Asst. City Sol., Pittsburgh, for appellant.
Clarence M. Freedman, Philadelphia, for Pennsylvania Public Utility Commission.
C. K. Robinson, Pittsburgh, for Pittsburgh Rys. Co., intervening appellee.
Before Rhodes, P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 171 Pa. Super. Page 393]
We shall make an order granting supersedeas in City of Pittsburgh v. Pennsylvania Public Utility Commission, No. 173, April Term, 1952. In view of the nature of the proceedings we shall give our reasons for making the following order.
The Pittsburgh Railways Company, on June 25, 1952, filed a new tariff of rates and fares for street car service, Rail Pa.P.U.C. No. P-24, to become effective July 27, 1952, and canceling Rail Pa.P.U.C. No. P-23, and all supplements thereto.*fn1 Corresponding tariffs were filed for bus and incline service. On July 14, 1952, the Commission, by a vote of three of the Commissioners to one, allowed the new tariffs to become effective as to rates and fares and as to cancellation
[ 171 Pa. Super. Page 394]
of the existing tariffs, which are the subject of an undetermined rate proceeding before the Commission. The new tariffs increased the rates and fares of the Pittsburgh Railway Company over those of the existing tariffs. The Pittsburgh Railways Company had filed on August 10, 1951, tariff Rail Pa.P.U.C. No. P-23, effective September 10, 1951. Complaint was filed by the City of Pittsburgh before the effective date. Hearings were held by the Commission and the taking of testimony was concluded on June 17, 1952. As stated before this Court, briefs were directed to be filed by the Company on July 29, 1952, and by the City on August 10, 1952. Although the said rate proceeding has not been concluded, the Commission allows by its action the new tariffs to become effective on July 27, 1952.
We are of the opinion that, pending the disposition of the undetermined rate proceeding, no increase in rates is permissible except as may be provided by section 310 of the Public Utility Law of May 28, 1937, P.L. 1053, 66 P.S. § 1150; and that the action of the Commission by a majority vote in allowing new tariffs to become effective and the protested tariffs to be canceled was arbitrary, unreasonable, and contrary to law.*fn2 Such result was not accomplished by alleged Commission non-action under section 308 of the Public Utility Law of 1937, 66 P.S. § 1148. Not only was the action of the Commission evidenced by a vote of the members of the Commission, but a so-called 'release' under date of July 15, 1952, issued by the Commission
[ 171 Pa. Super. Page 395]
gave notice that monthly reports were required to be filed by the Company as to the results of the new rates and fares, and set forth what was apparently considered by the Commission to be the need for such new rates and fares. The present situation is the consequence of Commission action. If there was no order pro forma there was an order de facto.*fn3 Appellate review of Commission action cannot be precluded by subterfuge or by the form in which such action is evidenced. Moreover, administrative action cannot violate the fundamental principles of fairness any more than it can impinge on any constitutional right.
In the pending rate proceeding at P.U.C. Docket No. C 15327, involving a basic fare increase to 17 cents, the burden of proof to show the rates to be just and reasonable was upon the utility. Section ...