No. 80-2-299, Appeal from the Order and Opinion of the Commonwealth Court of Pennsylvania at No. 1678 C.D. 1980 filed July 22, 1980.
Joseph J. Malatesta, Jr., Chief Counsel, Daniel P. Delaney, Harrisburg, Mark C. Stephenson, Asst. Counsel, Philadelphia, for appellant.
Nathan L. Posner, Jeffrey B. Albert, Fox, Rothschild, O'Brien & Frankel, Philadelphia, for appellee.
Larsen, Justice. Nix, J., filed a dissenting opinion. Kauffman, J., filed a dissenting opinion.
On June 19, 1980, Act 69 of 1980 (an act amending the Public Utility Code, 66 Pa.C.S. § 1103) was signed into law
by Governor Thornburgh and took effect on that date. Act 69 was intended to increase, in expedited fashion, the availability of taxicab service in "cities of the first class," i.e., Philadelphia. The legislature found the present service in Philadelphia "wholly inadequate" (Preamble to Act 69) to meet present needs, and gave the Pennsylvania Public Utility Commission (PUC), the appellant, the authority to grant, without hearing, immediate temporary operating certificates of public convenience for taxicab service, subject to further investigation before a permanent certificate would be granted. 66 Pa.C.S. § 1103(c)(4). Additionally, Act 69 provides:
The transfer of a certificate of public convenience, by any means or device, shall be subject to the prior approval of the commission which may in its sole or peculiar discretion as it deems appropriate, attach such conditions, including the appropriate allocation of proceeds, as it may find to be necessary or proper. (emphasis added) 66 Pa.C.S. § 1103(7).
On July 10, 1980, a joint application for the transfer of a certificate of public convenience to operate a taxicab in Philadelphia was filed by Yellow Cab of Philadelphia, appellee, and Duke Cab Company. The application requested the PUC to expedite the approval of the transfer of the right to operate one taxicab (Yellow Cab has authority to operate 800 taxicabs in Philadelphia) to Duke Cab Company.
Only eight days later, on July 18, 1980, Yellow Cab initiated the instant proceeding by filing with the Commonwealth Court a complaint in equity requesting that court, inter alia, to direct the PUC to process the transfer application on an expedited basis. A hearing on this complaint was held on July 22, 1980, following which the Commonwealth Court issued the following preliminary injunction:
NOW July 22, 1980, it is hereby ordered as follows:
1. The Pennsylvania Public Utility Commission shall, on or before September 1, 1980, enter its decision on the application of Yellow Cab Company of Philadelphia to transfer one operating right or certificate to Duke Cab Company, Inc.
. In all other respects, Yellow Cab Company of Philadelphia's motion for preliminary injunction is denied.
The PUC has appealed this order. For the reasons stated below, we reverse that order and dissolve the injunction.
Our standard of review of preliminary injunctions is well settled.
As a preliminary consideration, we recognize that on an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor . . . . In order to sustain a preliminary injunction, the plaintiff's right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted. . . .
Bell v. Thornburgh, 491 Pa. 263, 267, 420 A.2d 443, 445 (1980). (citations omitted). Further, a mandatory preliminary injunction, such as is involved here, "should be used only in rare cases and certainly more sparingly than one which is merely prohibitory." Roberts v. School Board of the City of Scranton, 462 Pa. 464, 469-70, 341 A.2d 475, 478 (1975). Also, the mandatory preliminary injunction is designed to restore the status quo to the "last actual, peaceable [and] noncontested status which preceded the pending controversy." Commonwealth v. Coward, 489 Pa. 327, 342, 414 A.2d 91, 99 (1980) (quoting Commonwealth v. Cohen, 150 Pa. Super. 487, 489, 28 A.2d 723, 724 (1942)). Applying these principles to the instant case, it is apparent the preliminary injunction was improper.
The Commonwealth Court made no finding with respect to Yellow Cab's, the plaintiff's, right to relief (i.e., the legal right to expedite their application for transfer). If no
such right exists, the preliminary injunction should not have been granted. No such right exists.*fn1
Act 69 gave the PUC broad discretion to approve or disapprove the transfer of a certificate of public convenience. Certainly nothing in the language of section 7, 66 Pa.C.S. § 1103(c)(7), see text supra, can be read to place time constraints on PUC proceedings on transfer applications. Act 69 does contemplate that the PUC will give priority generally to the taxicab service in Philadelphia, but it does not purport to, ...