Appeal from the Order of the Pennsylvania Public Utility Commission in case of Posten Taxi Company, Inc. v. Robert Burgit, t/d/b/a Bob Burgit City Limousine Service, No. A-00100713-C812, dated January 21, 1983.
Herbert R. Nurick, McNees, Wallace & Nurick, for petitioner.
Michael C. Schnierle, Assistant Counsel, with him, Kenneth E. Nicely, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.
Michael R. Muth, for intervenor, Posten Taxi Company, Inc.
Judges Williams, Jr., Barry and Colins, sitting as a panel of three. Opinion by Judge Barry.
[ 82 Pa. Commw. Page 180]
Before us is a petition for review of an order of respondent, Pennsylvania Public Utility Commission (PUC), adopted December 3, 1982, and entered January 21, 1983. On September 16, 1981, intervenor Posten Taxi Company, Inc., (Posten) filed a complaint before the PUC against petitioner, Robert Burgit, t/d/b/a Bob Burgit City Limousine Service (Burgit). The complaint alleged, inter alia, that Burgit was not acting within the scope of the certificate granted to him by the PUC to operate a limousine service in the Wilkes-Barre area by the use of luxury-type vehicles without meters or dome lights. Posten requested the PUC to enjoin Burgit from providing the allegedly unauthorized service and requested that his rights be revoked. The matter was referred to an administrative law judge, who dismissed the complaint after a hearing and ordered Burgit to "cease and desist advertising limousine service in the Yellow Pages under the heading of 'Taxicabs.'" Posten filed exceptions to that decision, which exceptions were denied
[ 82 Pa. Commw. Page 181]
by the administrative law judge on October 20, 1982. Posten then appealed to the PUC, which, by a 3-2 vote, granted the appeal "to the extent consistent with this opinion and order." The PUC also ordered that Burgit cease and desist from operating in his limousine service "any vehicle which is not a Cadillac, a Lincoln or a Chrysler," and that Burgit remove immediately from the roofs of his vehicles the large billboard advertising "regular public passenger service," that he immediately cease and desist from offering the limousine service on a non-exclusive basis, that he cease and desist from advertising limousine service in the Yellow Pages under the heading of Taxicabs, and that he conform to the provisions set forth in the order and submit to inspection by a PUC official.
On February 15, 1983, Burgit filed with the PUC a petition for reconsideration of the order of January 21, 1983, requesting the PUC to affirm the initial decision of the administrative law judge. Burgit also filed, on February 17, 1983, a petition for review of the order with this Court. On February 18, 1983, the PUC granted reconsideration pending further consideration of the merits of the petition. By order entered April 4, 1983, the PUC denied the relief requested in the petition for reconsideration. On April 5, 1983, the petition for review filed in this Court was stricken because it became inoperative pursuant to Pa. R.A.P. 1701(b)(3). Finally, on April 7, 1983, Burgit filed another petition for review of the order of the PUC entered January 21, 1983. This is the petition presently before this Court. Burgit then filed with the PUC a petition for supersedeas of the PUC's January 1983 order, which petition for supersedeas was denied. On May 6, 1983, Burgit filed with this Court an Application for Stay or Supersedeas and Brief in Support of Stay or Supersedeas. After a
[ 82 Pa. Commw. Page 182]
hearing on this matter, Senior Judge Paul S. Lehman stayed the PUC's January 1983 order "to the extent that it requires [Burgit] to operate only specified makes of vehicles." After examining the record in the case before us, we affirm the order of the PUC of January 1983 to the extent that it determined that Burgit exceeded the scope of his certificate, and ordered that Burgit remove from the roofs of his vehicles billboards advertising "regular public passenger service," that Burgit cease and desist from offering the limousine service on a non-exclusive basis, that Burgit cease and desist from advertising limousine service in the Yellow Pages under the heading of Taxicabs, and that Burgit submit to an inspection by a PUC official. The order of the PUC is remanded to the extent that it orders Burgit to cease and desist from operating any vehicle "which is not a Cadillac, a Lincoln or a Chrysler." We remand to the PUC for a better definition of what constitutes a "luxury-type vehicle."
In his petition for review, Burgit alleges several areas in which he contends that the PUC erred in its determination. These will be discussed seriatim. Burgit first makes a due process argument, contending that the PUC acted contrary to law in eliminating certain elements of rights granted to him by the PUC when his certificate was issued. In this regard, Burgit contends that the PUC has, at all times, considered him to have "call or demand"*fn1 authority, albeit the call or demand service is to be a limousine service, as opposed to a taxicab service. Concluding that Burgit
[ 82 Pa. Commw. Page 183]
should be governed by limousine service regulations, which do not include certain services allowed by call or demand service, the PUC in its opinion stated "the phrase 'call or demand' was obviously used because of the lack of any other category and may be regarded as mere surplusage." The PUC has acknowledged that it erred in regarding the expression "call or demand" in Burgit's certificate as surplusage and striking it from the certificate. In its memorandum of law in support of its answer in opposition to [Burgit's] application for stay or supersedeas, the PUC continued as follows:
The Commission's intended effects in doing so were to preclude Burgit from continuing to render service in response to street hails as his vehicles cruised the streets, and to preclude him from rendering non-exclusive service. These two effects, the Commission contends were appropriate and are supported by the record in this proceeding. However, an unintended effect of the Commission's actions was to substantially reduce the geographic scope of Burgit's certificate, as a result of the difference between the regulation governing "call or demand" service, 52 Pa. Code § 29.312(4) and the regulation governing limousine ...