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COMMONWEALTH PENNSYLVANIA v. ZANELLA TRANSIT (08/04/80)

decided: August 4, 1980.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, PLAINTIFF
v.
ZANELLA TRANSIT, INC., DEFENDANT. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, PLAINTIFF V. T. RICHARD ZANELLA, T/D/B/A ZANELLA TRANSIT, DEFENDANT



Original jurisdiction in cases of Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission v. Zanella Transit, Inc. and Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission v. T. Richard Zanella, t/d/b/a Zanella Transit.

COUNSEL

Lee E. Morrison, Assistant Counsel, with him Joseph J. Malatesta, Jr., Deputy Chief Counsel and George M. Kashi, Chief Counsel, for plaintiff.

T. Richard Zanella, defendant, for himself.

President Judge Crumlish and Judges Rogers and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 53 Pa. Commw. Page 360]

Addressed to this Court's original jurisdiction under Section 761(a)(2) of the Judicial Code, 42 Pa. C.S. § 761(a)(2), the Pennsylvania Public Utility Commission (Commission) filed an action in assumpsit against Zanella Transit, Inc. (No. 2919 C.D. 1978) and one against T. Richard Zanella doing business as Zanella Transit (No. 2920 C.D. 1978). Each action is to recover fines of $15,800.00 assessed by Commission order against each one of the defendants for operating a common carrier pursuant to a cancelled certificate of public convenience. The actions were commenced under express authority of the Public Utility Code, 66 Pa. C.S. § 3301(a).

In response to the Commission's complaints, the defendants (Zanella) have filed an answer, new matter and counterclaim.*fn1 To the defendants' pleadings the Commission has filed preliminary objections: a motion to strike the answer and new matter for not pleading material allegations of fact, and a demurrer to the counterclaim for not stating a cognizable cause of action

[ 53 Pa. Commw. Page 361]

    against the Commission. We sustain the plaintiff's preliminary objections.

In each case, the Commission's complaint alleges the existence and non-payment of the fines. The defendant's answer and new matter plead no material facts to specifically traverse the Commission's allegations and aver no facts which could constitute a well-pleaded avoidance of the claims. Instead, conclusions of law and immaterial assertions. The new matter suffers from that same infirmity.

The Pennsylvania Rules of Civil Procedure mandate the pleading of material facts. Pa. R.C.P. No. 1019(a). The defendants in this case have grossly violated that requirement. If the defendants are aware of some facts which negate the validity of the fines assessed, they have failed to effectively raise such facts in their pleadings. As to each of the plaintiff's actions before us, we are compelled to strike the defendants' answer and new matter as not being in conformity to the Rules of Civil Procedure.

[ 53 Pa. Commw. Page ]

From the defendants' pleadings it is difficult to ascertain the legal basis of their counterclaim for $1,000,000.00 against the Commission. On Page Ten of the defendants' brief it is declared that the counterclaim is ...


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