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ALLEGHENY COUNTY ET AL. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (07/09/63)

July 9, 1963

ALLEGHENY COUNTY ET AL., APPELLANTS,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeals, Nos. 41, 42, and 43, March T., 1963, from order of Pennsylvania Public Utility Commission, Application Docket No. 89034, in cases of County of Allegheny v. Pennsylvania Public Utility Commission, City of Pittsburgh v. Same, and Harry A. Estep, in his own right, and on behalf of users of Castle Shannon Incline Plane, v. Same. Appeal sustained; motion to quash refused.

COUNSEL

Maurice Louik, County Solicitor, with him Thomas M. Rutter, Jr., and Harold Gondelman, Assistant County Solicitors, for County of Allegheny, appellant.

Marion K. Finkelhor, Second Assistant City Solicitor, with him David W. Craig, City Solicitor, for City of Pittsburgh, appellant.

Harry A. Estep, appellant, in propria persona.

Daniel F. Joella, Assistant Counsel, with him Joseph I. Lewis, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.

James H. Booser, with him Harry H. Frank, and McNees, Wallace & Nurick, for railways company, intervening appellee.

Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.

Author: Montgomery

[ 201 Pa. Super. Page 419]

OPINION BY MONTGOMERY, J.

This is an appeal from an order of the Pennsylvania Public Utility Commission permitting the Pittsburgh Railways Company to temporarily discontinue the operation of the Castle Shannon Incline Plane between Bailey Avenue and East Carson Street in Pittsburgh, a distance of approximately 1,350 feet.

The Railways Company filed a petition on April 19, 1962, to abandon service on the incline plane. The County of Allegheny, the City of Pittsburgh and Harry A. Estep, Esq., a lawyer and a user of the incline plane, filed objections. This petition and thirty-two other petitions of the Pittsburgh Railways Company to abandon and modify transportation routes were consolidated for hearings. Testimony on these issues was taken June 26 and 27, July 30, October 16, 17, 18 and 19, and December 4, 5, 6 and 7, 1962, and other hearings were to follow. On December 8, 1962, the Pittsburgh Railways Company petitioned the Pennsylvania Public Utility Commission for an immediate temporary certificate to abandon service on the incline plane and by order dated December 17, 1962, and filed January 3, 1963, the commission approved "the temporary discontinuance of service on the Castle Shannon Incline Plane in the City of Pittsburgh...".

[ 201 Pa. Super. Page 420]

An appeal was taken from this order to the Superior Court by the County, the City, and Mr. Estep who, we think, were proper party appellants. They asked this Court for a supersedeas, which was granted. The commission and Pittsburgh Railways Company, as intervening appellee, moved to quash the appeal on the ground that the order was interlocutory and not appealable, and that the appellants had no standing to appeal.

The appellants contend that the commission had no authority to make a temporary order; that the order which it did make is a final abandonment order, and therefore appealable; and that the order was issued without due process and is therefore unconstitutional and of no legal effect.

The mere fact that the order is temporary in nature does not mean that there may be no judicial review of it. In a sense, nearly all orders of the commission relating to rates and services are temporary in that they are subject to change. The majority of this Court are of the opinion that this order accomplishes the complete termination of service except for the dismantling of the incline plane, subject, of course, to a subsequent order reinstating service before that occurrence, and is therefore appealable; and that the motion to quash should be dismissed.

The remaining question is: Did the commission have authority to issue an order before completion of ...


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