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PENNSYLVANIA RAILROAD COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (11/14/58)

THE SUPERIOR COURT OF PENNSYLVANIA


November 14, 1958

PENNSYLVANIA RAILROAD COMPANY, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.

Appeal, No. 178, Oct. T., 1958, from order of Pennsylvania Public Utility Commission, Investigation Docket No. 48, in case of The Pennsylvania Railroad Company v. Pennsylvania Public Utility Commission. Prior order of Superior Court set aside and record remitted.

COUNSEL

Windsor F. Cousins, with him Harris J. Latta, Jr., and L. W. Fogg, Jr., for appellant.

Edward Friedman, Deputy Attorney General, with him Edward Munce, Assistant Counsel, and Thomas M. Kerrigan, Counsel, for Pennsylvania Public Utility Commission, appellee.

William D. Valente, Assistant City Solicitor, with him David Berger, City Solicitor, for City of Philadelphia, intervening appellee.

Mead J. Mulvihill, Jr., Assistant City Solicitor, with him J. Frank McKenna, Jr., City Solicitor, for City of Pittsburgh, intervening appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Watkins, JJ. (ervin, J., absent).

Author: Wright

[ 187 Pa. Super. Page 588]

OPINION BY WRIGHT, J.

On December 24, 1957, the Pennsylvania Railroad Company notified the Public Utility Commission that it proposed to revise the schedules of its inter-city passenger trains effective February 16, 1958. This notice was given pursuant to an informal practice of the Company, and was not required by any regulation or order of the Commission. Thereafter, the Company proceeded to publish and distribute new timetables, and to sell tickets and reserve space in accordance therewith. Connecting schedules of other railroads at terminal points were adjusted, and necessary arrangements made regarding the transportation of mail. On January 31, 1958, the Cities of Pittsburgh and Philadelphia filed petitions with the Commission protesting the new schedules and requesting that they be suspended. A similar petition was filed by the Co-operative

[ 187 Pa. Super. Page 589]

Legislative Committee, Railroad Brotherhoods. On February 3, 1958, with Commissioners Houck and Conly dissenting, the Commission issued an order directing that the Company "hold in abeyance" the proposed schedule changes "pending investigation and public hearing". The Company promptly appealed, and filed a petition for supersedeas. On February 13, 1958, the Cities of Pittsburgh and Philadelphia were granted leave to intervene as appellees. The same day, this court issued a rule to show cause why supersedeas should not be granted, and stayed the order of the Commission pending argument thereon. The proposed schedules accordingly went into effect. On March 6, 1958, following argument, the rule was made absolute. Transfer to daylight saving time required another revision of the Company's schedules, effective April 27, 1958.*fn1 On May 15, 1958, the Commission presented a petition alleging that the controversy was moot, and requesting that the record be remitted so that the proceeding might be vacated. On the day of argument thereon, this petition was joined in at bar by the intervening appellees. By order dated June 17, 1958, the petition for remission was refused.*fn2

A majority of this court, not including the writer, was originally persuaded by the Company's vigorous resistance to the Commission's petition for remission of the record. However, it has now been concluded that the order of June 17, 1958, refusing the petition for remission, should be reconsidered. Essentially the

[ 187 Pa. Super. Page 590]

    same issue is presented in the Company's companion appeal No. 313, October Term, 1958, which involves the validity of new Rule 10 of the Commission's Railroad Regulations.*fn3 So far as appeal No. 178, October Term, 1958 is concerned, the controversy is clearly moot and it is unnecessary to write a separate opinion.

Disposition

The prior order of this court dated June 17, 1958, refusing the petition for remission is set aside, and it is ordered that the record be remitted to the Commission so that the proceeding may be vacated, costs to be divided equally between the intervening-appellees.


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