Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Appeal of Yellow Limousine Service from Adoption by the Southeastern Pennsylvania Transportation Authority of Proposed Tariff No. 9 -- Proposed Airport Express Bus Route, No. 4380 December Term, 1969.
Lewis H. Van Dusen, Jr., Chief Counsel, with him J. Freedley Hunsicker, Jr., and Drinker, Biddle & Reath, for appellant.
Irving R. Segal, with him William M. Barnes, Ralph S. Snyder and Schnader, Harrison, Segal & Lewis, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Dissenting Opinion by Judge Kramer.
[ 10 Pa. Commw. Page 574]
The Southeastern Pennsylvania Transportation Authority (SEPTA) here appeals from an order of the Court of Common Pleas of Philadelphia County restraining it from instituting direct bus service from Philadelphia International Airport to center city Philadelphia.
SEPTA is an authority formed pursuant to the Metropolitan Transportation Authorities Act of 1963, Act of August 14, 1963, P.L. 984, 66 P.S. § 2001 et seq.
[ 10 Pa. Commw. Page 575]
Its constituent members are the City of Philadelphia and the Counties of Bucks, Chester, Delaware and Montgomery. It is charged by the Legislature with the duty of combining, improving, extending and supplementing public transportation systems in the Philadelphia metropolitan area, which systems the Legislature found to be so underdeveloped and obsolete as to have harmed the economic and social health of the area, depreciated property values, reduced tax revenues and generally made the area a less desirable place to live and work. Metropolitan Transportation Authorities Act of 1963, supra, § 2, 66 P.S. § 2002. SEPTA's mission, as specifically provided by the Act, is that of planning, acquiring, holding, constructing, improving, maintaining, operating, and otherwise functioning with respect to a transportation system in the metropolitan area. Metropolitan Transportation Act of 1963, supra, Section 4, 66 P.S. § 2004(a). SEPTA has broad and inclusive powers to do all that is necessary for the accomplishment of its mission.
Philadelphia International Airport, located at the southerly extremity of the City of Philadelphia and extending into portions of Delaware County, is the principal air terminal of the Philadelphia metropolitan area. The Philadelphia metropolitan area was in 1969 and still is the fourth most populous metropolitan area in the United States.*fn1 The Philadelphia International Airport is the only airport of the ten most populated metropolitan areas in the United States which does not have a direct mass transportation facility between its principal airport and city center. The only means of direct transportation between the Philadelphia International Airport and center city are by private automobile, by taxicab, and by limousine service provided by Yellow
[ 10 Pa. Commw. Page 576]
Limousine Service, Inc. (Yellow Limousine), SEPTA's adversary in this lawsuit.*fn2
In July 1969, SEPTA, believing that transportation in the metropolitan area would be improved by providing direct bus service between the airport and center city, published a tariff under which it proposed to provide a scheduled bus service between the airport and downtown transit centers, seven days a week between the hours of 7:00 in the morning and 9:30 in the evening for a charge of $1.00 one way, with five cents additional to transfer to any intersecting SEPTA route, and less 30 cents for passengers presenting a valid transfer from an intersecting SEPTA route. The buses would run at 30 minute intervals during hours of peak travel and at 45 minute intervals at other times. Each bus would accommodate 49 passengers and their luggage.
Yellow Limousine is a public utility certificated, inter alia, to render an airport transfer service throughout the City of Philadelphia and in certain areas of Montgomery and Delaware Counties. Its use of its certificate in the airport transit service consists of the operation of 27 eleven passenger limousines between the airport and several large hotels and motor inns in center city and one large hotel and apartment complex near the intersection of City Line Avenue and the Schuylkill Expressway, some miles from downtown. Its limousines operate from the airport 24 hours a day, seven days a week, but from the downtown hotels to the airport only between the hours of 6:00 A.M. to 11:00 P.M., also seven days a week. From the center city hotels to the airport the limousines run on a 30 minute
[ 10 Pa. Commw. Page 577]
schedule; from the airport to center city they are on an irregular schedule, departing when filled, but not less frequently than every 15 minutes. On the trips from the airport to center city the limousines will deviate to accommodate persons desiring to go places other than the designated hotels. The cost of the trip is $1.75. The limousines were described by a representative of Yellow Limousine in these proceedings as "11 passenger airport transport cars, which some people call stretch-outs. What they really are are passenger automobiles which are sent to a firm in the midwest which breaks them apart and puts in two extra seats and two extra doors, and they are known as stretch-outs or 11 passenger limousines."
Pursuant to Section 4(d)(9) of the Metropolitan Transportation Authorities Act of 1963, supra, 66 P.S. § 2004(d)(9), a hearing on SEPTA's proposed tariff was conducted by an examiner and later by the SEPTA board. Yellow Limousine appeared in opposition. The examiner recommended the implementation of the tariff and SEPTA's board passed resolutions adopting its examiner's recommendation. As provided by Section 4(d)(9), Yellow Limousine appealed the board's action to the Court of Common Pleas of Philadelphia County which, as previously noted, restrained SEPTA from instituting the proposed service.
SEPTA is empowered to use "any public road, street, way, highway, bridge or tunnel for the operation of a transportation system within the metropolitan area." Metropolitan Transportation Authorities Act of 1963, supra, § 4(d)(20), 66 P.S. § 2004(d)(20).
Section 9 of the Act,*fn3 however, provides: "The authority shall not have the right to use any street or public way presently occupied by a public utility engaged in ...