Appeal from the Order of the Pennsylvania Public Utility Commission in case of Application of Ashbourne Transportation, Inc., a corporation of the Commonwealth of Pennsylvania, No. A-99468, F. 4.
Herbert Somerson, with him, Val Pleet Wilson, Somerson and Bomze, P.C., for petitioner.
Michael C. Schnierle, Assistant Counsel, with him, Eric A. Rohrbaugh, Assistant Counsel, Alfred N. Lowenstein, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.
Anthony C. Vance, with him, Harry F. Goldberg, Blank, Rome, Klaus & Comisky, for intervenor, Ashbourne Transportation, Inc.
Judges Williams, Jr., Doyle and Palladino, sitting as a panel of three. Opinion by Judge Doyle.
[ 85 Pa. Commw. Page 213]
Before this Court is an appeal by Carol Lines, Inc. (Petitioner) from a decision of the Pennsylvania Public Utility Commission (PUC) dismissing as untimely Petitioner's appeal of a grant of passenger bus carrier rights to Ashbourne Transportation, Inc. (Ashbourne). We affirm.
On May 25, 1982, an administrative law judge of the PUC issued a decision granting Ashbourne passenger bus carrier rights in the Philadelphia metropolitan area, despite opposition thereto by Petitioner. Exceptions to this decision were filed by Petitioner. They were denied on July 15, 1982 and a copy of the ruling was sent to Petitioner's counsel. Petitioner then filed an appeal with the PUC which was received on August 2, 1982. On August 11, 1982 that appeal was dismissed as untimely. An appeal to this Court was filed on September 3, 1982.*fn1
Pursuant to Section 332(h) of the Public Utility Code (Code), 66 Pa. C.S. § 332(h), an administrative law judge's ruling on exceptions becomes final, without further PUC action, unless an appeal is taken by one of the parties within fifteen days of its issuance. The date of issuance of a ruling is the date it is mailed to the party so long as, as in the case at bar, such is clearly indicated on the ruling itself. Section 31.13 of the General Rules of Administrative Practice and Procedure, 1 Pa. Code § 31.13. And, an appeal is deemed filed on the date it is actually received by the PUC. See Section 31.11 of the General Rules of Administration
[ 85 Pa. Commw. Page 214]
Practice and Procedure, 1 Pa. Code, § 31.11.*fn2 The parties herein agree that the administrative law judge's ruling on the subject exceptions was issued on July 15, 1982. It is also agreed that Petitioner's appeal therefrom was mailed on July 30, 1982 and received by the PUC on August 2, 1982. Hence, the appeal was indeed untimely. The PUC, however, is granted a limited degree of discretion insofar as whether an appeal should be dismissed for untimeliness. Section 332(h) of the Code provides that if within fifteen days two or more commissioners request that the PUC review the matter regardless of its untimely filing, then proper review may be had for a period of ninety days. Whether such a request is made is clearly a matter within the discretion of the PUC's individual commissioners. No such request was made herein and Petitioner has not substantiated any facts to this Court, such as fraud or improper influence, that would permit a conclusion that there was an abuse of discretion by the commissioners.*fn3 Accordingly, the dismissal of Petitioner's appeal as untimely must be affirmed. Moreover, as Petitioner has failed to preserve its appeal rights through the required exercise of available administrative remedies, this
[ 85 Pa. Commw. Page 215]
Court is not free to address the merits of its appeal.*fn4 Borough of Ridgway v. Pennsylvania Public Utility Commission, 83 Pa. ...