No. 124 March Term, 1978, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 575 C.D. 1977
Stephen F. Ban, Edward L. Springer, Springer & Perry, Pittsburgh, for appellant.
William T. Hawke, Geo. M. Kashi, Asst. Counsels, for appellee.
Kathleen Herzog Larkin, Harrisburg, for Public Utility Commission.
William A. Gray, Wick, Vuono & Lavelle, Pittsburgh, for Gateway Clipper, Inc.
Eagen, C. J., and O'Brien, Roberts, Nix,*fn* Manderino, Larsen and Flaherty, JJ. Eagen, C. J., concurs in the result. Larsen, J., files a dissenting opinion in which Flaherty, J., joins. Manderino, J., did not participate in the decision of this case.
Appellant, Troiani Brothers, Inc. (Troiani) is a Pennsylvania corporation which operates a luncheon and supper restaurant afloat on the Monongahela River, Pittsburgh, Allegheny County. In order to transport customers to and from the restaurant, the appellant operates a watercraft known as "The Pittsburgher," for a charge. This watercraft is also offered for hire to conduct sightseeing tours along the Ohio, Monongahela and Allegheny Rivers, all within Allegheny County. On October 22, 1975, appellant applied for a certificate of public convenience with the Pennsylvania Public Utility Commission (Commission) authorizing them to conduct the aforementioned activities. The application was protested by Gateway Clipper, Inc. which had been previously certified by the Commission to provide "excursion" service sought by Troiani's application. No action was taken on the application for over a year. On February 25, 1977, appellant, by letter of counsel, questioned the jurisdiction of the Commission over the application it had originally made. In the interim period, Troiani had changed counsel and new counsel maintained that the Second Class County Port Authority Act, Act of April 6, 1956, P.L. (1955) 1414, as amended,
P.S. § 551, et seq., placed exclusive jurisdiction over the services offered and proposed by Troiani in the Port Authority of Allegheny County.
A complaint issued by the Commission alleging violation of the Public Utilities Law, §§ 201 and 202*fn1 by appellant for operation of the watercraft without the necessary permit was received by Troiani on March 4, 1977. On March 10, 1977, Troiani instituted an action in the Commonwealth Court requesting an injunction to stay the Commission's proceedings and for a review of the propriety of the Commission's exercise of jurisdiction in the matter. The Commission filed preliminary objections in the form of a demurrer which were sustained by the Commonwealth Court and the petition for review was dismissed. This appeal is from the order of the Commonwealth Court sustaining the preliminary objections and dismissing the petition of appellant for review.*fn2
The essence of Troiani's position is that the clear language of the Second Class County Port Authority Act, supra, vests exclusive jurisdiction, over their intended operation of the watercraft for hire between points in Allegheny County, in the Port Authority of that county and specifically ousts the Commission's jurisdiction over such transportation. Proceeding from this premise, appellant argues that since the Commission's attempt to exercise jurisdiction is clearly erroneous, the Commonwealth Court should have issued a restraining order against the Commission, pursuant to section 1111 of the Public Utility Law.*fn3 The Commonwealth Court
sustained the demurrer and dismissed Troiani's action based upon their conclusion that Troiani had failed to establish the inadequacy of its statutory remedy of appeal and also failed to demonstrate that the Commission's assertion of jurisdiction was clearly erroneous. However, we believe the action ...