Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Pennsylvania Public Utility Commission v. Carol Lines, Inc., Nos. C-79020739 and C-79040833.
Herbert Somerson, for petitioner.
Michael C. Schnierle, Assistant Counsel, with him John G. Alford, Assistant Counsel, and Joseph J. Malatesta, Jr., Chief Counsel, for respondent.
Judges Rogers, Blatt and Palladino, sitting as a panel of three. Opinion by Judge Palladino.
[ 63 Pa. Commw. Page 429]
This is an appeal from an order of the Public Utility Commission (PUC) directing Carol Lines, Inc. (Carol Lines) to cease and desist from "transporting persons for compensation between points in Pennsylvania except in compliance with the motor carrier provisions of the Public Utility Code. . . ." We reverse and remand.
The PUC, by its own motions, instituted two complaints against Carol Lines on February 22, 1979, and April 19, 1979, alleging in each that Carol Lines had violated Section 201 of the Public Utility Law (Law), Act of May 28, 1937, P.L. 1053, as amended, formerly
[ 63 Pa. Commw. Page 43066]
P.S. § 1121,*fn1 by transporting passengers on various occasions as a common carrier without a certificate of public convenience. In its answers to these complaints, Carol Lines (1) admitted that it had rendered the transportation services in question, and that it had done so without a certificate of public convenience, (2) asserted that the transportation services had been rendered pursuant to a contract to children participating in a summer educational program of the Klein Branch of the Jewish Y (Klein Branch), and (3) alleged that such transportation services were exempted from the certification provisions of Section 201 of the Law by Section 2(6) of the Law,*fn2 formerly 66 P.S. § 1102, which provided in pertinent part:
'Common Carrier by Motor Vehicle' means any common carrier who or which holds out or undertakes the transportation of passengers or property, or both . . . but shall not include . . . (b) transportation of school children for school purposes or to and from school sponsored extra curricular activities whether as participants or spectators, together with chaperons who might accompany them as designated by the board of school directors not exceeding five in number, or between their homes and Sunday school in any motor vehicle owned by the school district, private school or parochial school, or transportation of school children between their homes and school or to and from school sponsored extra curricular or educational activities whether as participants or spectators . . . if the person
[ 63 Pa. Commw. Page 431]
performing the extra curricular transportation has a contract for the transportation of school children between their homes and school, with the private or parochial school, with the school district or jointure in which the school is located if the jointure has no contracts with other persons for the transportation of students between their homes and school, and if the person maintains a copy of all contracts in the vehicle at all times. . . .
On July 5, 1979, the parties attended a pretrial conference on these complaints conducted by an Administrative Law Judge (ALJ). At this conference, the parties agreed to consolidate the two complaints, and Carol Lines presented a contract to the ALJ (1) which the parties stipulated was the contract pursuant to which Carol Lines performed the transportation services in question, and (2) which the parties stipulated was the only contract between Carol Lines and the Klein Branch pertaining to the rendering of transportation services. Following the submission of this contract, the parties discussed their respective interpretations of Section 2(6), and at the conclusion of the discussion the PUC trial staff requested, and received, permission to file a motion for summary judgment, which was subsequently submitted on July 19, 1979. In this motion, the PUC alleged that there were no remaining unsettled material questions of fact, and that Carol Lines' contractual relationship with the Klein Branch did not, as a matter of law, fall within the certification exemption of Section 2(6). In its answer to ...