Appeal from the Order of the Pennsylvania Public Utility Commission in case of Application of Federated Security, Inc. No. 92573, F.4.
James W. Patterson, with him, of counsel, Morgan, Lewis & Bockius, for appellants.
Melville G. M. Walwyn, Assistant Counsel, with him Edward Munce, Counsel, for appellee.
Jerome Solomon, for intervening appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.
[ 16 Pa. Commw. Page 302]
Before us is a motion filed by the Pennsylvania Public Utility Commission (PUC) to quash Brink's, Inc., Purolator Courier Corp., Purolator Security, Inc., and Protective Motor Service Co.'s (hereinafter referred to collectively as "Appellant"), appeal from an order of P.U.C., dated March 5, 1974, which denied Appellant's petition to modify and rescind a short form order entered by it on August 17, 1973.
Since the dates and actions attendant thereto are controlling, we recite them. On October 21, 1970, Federated Security, Inc. (Intervening Appellee) filed an application with P.U.C. in which it requested a certificate of public convenience to transport monies, bullions, securities and other valuables as a common carrier to points within 150 miles of the City of Pittsburgh. Protests were duly filed by Appellant, and following a hearing on the application, P.U.C., on August 17, 1973, issued a short form order conditionally approving the application. Appellant was served notice of this order on September 7, 1973, and on September 27, 1973, it filed a petition for rescission or modification of the short form order in which it also requested an oral argument and supersedeas thereon. By order dated March 5, 1974, P.U.C. denied the prayers of the petition, and proper service of the order was made on Appellant on March 7, 1974. Appellant thereupon timely filed the instant appeal with this Court on April 5, 1974. On July 10, 1974, P.U.C. filed the instant motion to quash or dismiss, and on July 25, 1974, when Appellant failed to file an answer, the motion was
[ 16 Pa. Commw. Page 303]
granted. Appellant then applied for reconsideration and sought to vacate the quashal. We vacated our order and now before us is the motion to quash.
Of critical significance in our consideration of the question of the justiciability of this appeal is the import of our recent holding in Purolator Courier Corp. v. P.U.C., 13 Pa. Commonwealth Ct. 444, 319 A.2d 688 (1974). There we held that Section 502 of the Appellate Court Jurisdiction Act (ACJA), Act of July 31, 1970, P.L. 673, as amended, 17 P.S. § 211.502 (Supp. 1974-1975), repealed as inconsistent that portion of Section 1101 of the Public Utility Law,*fn1 66 P.S. § 1431 (Supp. 1974-1975), which measured the thirty day appeal period to this Court from "the service of any order by the commission", in contradistinction to "within thirty days of its entry" as set forth in Section 502 of ACJA. P.U.C. entered its short form order conditionally approving the certificate of convenience at A.92573F.4 on August 17, 1973, and appellant was given formal service of the filing of the order on September 7, 1973.*fn2 Appellant therefore had until September 17, 1973,*fn3 to file its appeal.
[ 16 Pa. Commw. Page 304]
Instead of appealing this short form order, Appellant, on September 27, 1973, filed a petition for rescission or modification and further hearing with P.U.C. under Section 1007 of the Public Utility Law, 66 P.S. § 1397, and thereafter timely appealed P.U.C.'s denial of this petition. P.U.C. and Intervening Appellee argue that the petition for modification was untimely as measured by the fifteen day limitation period provided by Section 1006, 66 P.S. § 1396, which relates to petitions for ...