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IRVING S. KARPE v. COMMONWEALTH PENNSYLVANIA (03/09/77)

decided: March 9, 1977.

IRVING S. KARPE, T/A YELLOW CAB COMPANY, PLAINTIFF
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, DEFENDANT



Original jurisdiction in case of Irving S. Karpe, t/a Yellow Cab Company, Plaintiff v. Pennsylvania Public Utility Commission.

COUNSEL

David Katz, with him Katz, Katz and Muth, for plaintiff.

R. Knickerbocker Smith, Jr., Assistant Counsel, with him Edward J. Morris, Counsel, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Judge Mencer dissents.

Author: Wilkinson

[ 29 Pa. Commw. Page 163]

This action in mandamus arises out of our original jurisdiction, as provided for in the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, as amended, 17 P.S. ยง 211.101 et seq. Plaintiff holds a Certificate of Public Convenience, which authorizes

[ 29 Pa. Commw. Page 164]

    him to transport, as a common carrier by motor vehicle, persons upon call or demand in portions of Pike and Monroe Counties. On May 29, 1974, plaintiff applied to the Pennsylvania Public Utilities Commission (PUC) for certification to the Pennsylvania Department of Transportation (DOT)*fn1 for the licensing of vehicles in the eight to twelve passenger class under plaintiff's present certificate. Such certification is a necessary condition precedent to the issuance of licenses by DOT. The PUC refused to so certify in a letter dated July 9, 1975. On January 22, 1976, plaintiff filed this action in mandamus asking that the PUC be instructed to certify to DOT that plaintiff holds a Certificate of Public Convenience authorizing service in the eight to twelve passenger vehicle class in order that licenses may be issued. There being no issues of fact, this case is now before us on cross motions for judgment on the pleadings.

The sole issue before us is whether the extraordinary writ of mandamus is the appropriate remedy in this instance. We hold that it is not.

In considering the actions in mandamus, we are constrained by the well settled rule that:

Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty when there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy. (Citations omitted.) (Emphasis in original.)

Unger et al. v. Hampton Township, 437 Pa. 399, 401, 263 A.2d 385, 387 (1970).

In support of his clear legal right to receive certification from the PUC, ...


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