Appeal, No. 313, Oct. T., 1958, from order of Pennsylvania Public Utility Commission, March 24, 1958, in case of The Pennsylvania Railroad Company v. The Pennsylvania Public Utility Commission. Order reversed, in part.
Windsor F. Cousins, with him Harris J. Latta, Jr., for appellant.
Edward Munce, Assistant Counsel, with him Edward Friedman, Deputy Attorney General, 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.
Lockwood W. Fogg, Jr., with him George C. Doering, David P. Reese, and Gordon E. Neuenschwander, for various railroads, under Rule 46.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Watkins, JJ. (ervin, J., absent).
[ 187 Pa. Super. Page 593]
By order nisi dated September 9, 1957, the Public Utility Commission proposed a new regulation applicable to passenger train service. This new regulation was a supplement to the Commission's Railroad Regulations and was designated Rule 10. Railroads furnishing passenger train service in the Commonwealth filed exceptions, whereupon the Commission conducted a hearing at which the railroads offered evidence in opposition to the proposed rule. By final order dated March 24, 1958, Commissioner Houck dissenting, the Commission adopted its new Rule 10 in a form differing from that proposed in the order nisi. A petition of the railroads for rehearing, reconsideration, and modification was denied by the Commission, without opinion, on May 7, 1958. Under the heading "Curtailment of Service" Rule 10 in its final form 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 ..." From that requirement this appeal was taken at No. 313 October Term 1958. The Cities of Philadelphia and Pittsburgh were granted leave to intervene as appellees. Petitions
[ 187 Pa. Super. Page 594]
of The Baltimore and Ohio Railroad Company, The Delaware, Lackawanna and Western Railroad Company, The New York Central Railroad Company, The Pittsburgh and Lake Erie Railroad Company, and The Reading Company for leave to intervene as appellants were refused, but permission was granted to file a brief under our Rule 46 and to be heard at oral argument. The Erie Railroad Company and The Lehigh Valley Railroad Company also joined in the brief.
While the instant proceeding was pending before it, the Commission undertook to suspend the operation of certain revised passenger schedules by virtue of an order appealed from at No. 178, October Term, 1958. That appeal has been disposed of this day in Pennsylvania Railroad Co. v. Pa. P.U.C., 187 Pa. Superior Ct. 587, 145 A.2d 360.
We wish to emphasize at the outset of our discussion that the interests of the public will always receive full protection from this court. It is important to point out the narrow issue involved in this appeal. At the risk of over-simplification, it may be described as a question merely of timing. Appellant does not seek to impose any restraint upon the regulatory powers of the Commission as they have been understood and exercised since the enactment of the Public Utility Law,*fn1 and prior thereto under the Public Service Company Law of 1913. No objection is advanced regarding the requirement that notice be given to the Commission of proposed revisions in the schedules of its passenger train service. In fact, as shown not only by the record in the instant appeal, No. 313 October Term 1958, but also by the record in the companion appeal No. 178 October Term 1958, appellant and the other railroads concerned have for a number of years
[ 187 Pa. Super. Page 595]
voluntarily followed the informal practice of giving such notice in advance. No question is raised as to the right of the Commission to regulate passenger train service or to require adequate service, even to the extent of the restoration of trains eliminated or the operation of new trains if evidence developed in a proper hearing establishes justification therefor. Cf. Erie Railroad Co. v. P.S.C., 99 Pa. Superior Ct. 443. The crux of the controversy is appellant's position that, in the absence of express authority to that effect from the legislature, the Commission may not interfere with the discretion of management in making proposed schedule changes, and here we advert to the question of timing, in advance of hearing. In short, appellant contends that its obligation is to provide such degree of passenger train service which the interests of the public require, but that management may initially exercise its own ...