Original jurisdiction in the case of Troiani Brothers, Inc. v. Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission.
Stephen F. Ban, with him Edward L. Springer, and Springer & Perry, for petitioner.
William T. Hawke, Assistant Counsel, with him George M. Kashi, Assistant Counsel, and Kathleen Herzog Larkin, Chief Counsel, for respondent.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, Rogers, Blatt and DiSalle. Opinion by President Judge Bowman.
[ 36 Pa. Commw. Page 180]
Troiani Brothers, Inc. (Troiani) has filed a petition for review in the nature of a complaint in equity within our original jurisdiction*fn1 questioning the jurisdiction of the Pennsylvania Public Utility Commission (PUC) to conduct an application and a complaint proceeding, and requesting, pursuant to Section 1111 of the Public Utility Law (Code),*fn2 66 P.S. § 1441, an injunction staying those proceedings. Presently before us are the PUC's preliminary objections in the nature of a demurrer to Troiani's petition for review.
Troiani, a Pennsylvania corporation, operates the Pilot House, a luncheon and supper restaurant located
[ 36 Pa. Commw. Page 181]
afloat the Monongahela River in Pittsburgh. In conjunction with this business, Troiani operates a passenger watercraft, the "Pittsburgher," whereby it transports customers, and proposes occasionally to transport persons not customers, to and from Three Rivers Stadium from the Pilot House dock. Troiani also proposes to offer sightseeing tours on the Ohio, Monongahela and Allegheny Rivers for hire, which tours will operate wholly within Allegheny County.
On October 22, 1975, Troiani made application to the PUC for a certificate of public convenience to operate the "Pittsburgher" in the above described manner. This application was protested on December 3, 1975, by Gateway Clipper, Inc., which is presently certificated by the PUC to provide services similar to those sought by Troiani's application. On February 25, 1977, over sixteen months after filing its application, Troiani, by letter of counsel, informed the PUC that, in its opinion, the PUC lacked jurisdiction to act upon said application.
On March 4, 1977, Troiani received a complaint from the PUC,*fn3 which alleged that Troiani had violated Sections 201 and 202 of the Code, 66 P.S. §§ 1121, 1122. Essentially, the complaint alleges that Troiani, without having obtained a certificate of public convenience, is performing transportation services which require a certificate. Troiani timely filed an answer to said complaint, denying certain factual allegations therein, and alleging under new matter that its activities did not fall within the PUC's jurisdiction. Troiani also requested the PUC to stay its proceedings until disposition by this Court of the instant petition for review. It appears that, to date, no further action has been taken by the PUC on either the pending application or the complaint.
[ 36 Pa. Commw. Page 182]
Section 1111 of the Code, invoked by ...