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decided: February 21, 1985.


Original jurisdiction in case of Investigation upon Commission Motion into the Installment Sale Purchase Program of Metro Transportation Company, t/a Yellow Cab Company and Related Matters I-840378, Yellow Cab Owners and Drivers Association, a non-profit corporation, incorporated in Pennsylvania, its Board of Directors, Officers, Shareholders; and Appeal No. 1709 C.D. 1984, from the Order of the Pennsylvania Public Utility Commission in case of Metro Transportation Co., t/a Yellow Cab Co. v. Pennsylvania Public Utility Commission, No. I-840378, dated May 14, 1984.


Kathleen Herzog Larkin, with her, Zenola Harper, Lawrence J. Beaser and Norman E. Greenspan, Blank, Rome, Comisky & McCauley, for petitioner, Metro Transportation Co., t/a Yellow Cab Co.

Val Pleet Wilson, with him, Herbert Somerson, Somerson and Bomze, P.C., for petitioner, Yellow Cab Owners and Drivers Association.

Alphonso Arnold, Jr., Assistant Counsel, with him, J. Kenneth Simms and Kenneth L. Mickens, Assistant Counsels, for respondent.

Judges Williams, Jr. and MacPhail and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the resignation of Judge Williams, Jr.

Author: Macphail

[ 87 Pa. Commw. Page 628]

This case arises in both our original and appellate jurisdictions. Metro Transportation Company (Metro) and Yellow Cab Owners and Drivers Association (Association) have filed a petition for review in our original jurisdiction seeking a writ of prohibition to prohibit the Pennsylvania Public Utility Commission (PUC) from proceeding with its investigation at Docket No. I-840378. Metro and the Association also petition for review of an order of the PUC dated May 14, 1984, which denied Metro's Motion to Clarify and Motion to Sever in regard to the proposed investigation. This Court by order dated June 15, 1984, preliminarily enjoined the PUC from proceeding with its investigation pending disposition of the merits of the petitions for review.*fn1

[ 87 Pa. Commw. Page 629]

The PUC has filed preliminary objections to the petition filed in our original jurisdiction and a motion to quash or dismiss the actions filed in our appellate jurisdiction. We will first consider the preliminary objections.

For the purpose of ruling upon the preliminary objections, we must accept as true all of the factual averments of the petitions. Stabatrol Corporation v. Metzval Corporation, 72 Pa. Commonwealth Ct. 188, 190, 456 A.2d 252, 253-54 (1983).

Metro is a Pennsylvania corporation and a public utility. In 1981 Metro acquired 800 Certificates of Public Convenience and other assets from the trustee in bankruptcy of the Yellow Cab Company of Philadelphia. This acquisition was subject to the condition that the PUC permit Metro, inter alia, to sell, 300 of the 800 Certificates to members of the Association. The Association is a not-for-profit Pennsylvania corporation which was created for the purpose of acquiring the 300 Certificates to be sold to its members. Metro and the Association are separate legal entities.

Because members of the Association were unable to purchase Certificates from Metro for cash, the PUC approved installment sales agreements between Metro and approximately 180 individual buyers. Title to the Certificates remains in Metro's name until the full purchase price has been paid.*fn2

Metro has relied upon the PUC's approval of these agreements in various ways which substantially affect Metro financially.

[ 87 Pa. Commw. Page 630]

The PUC approved of Metro's planned actions in case of default by an installment sales purchaser, and Metro has exercised its rights as permitted by the sales agreements. The PUC has acted upon motions to rescind filed by Metro where individual purchasers have been in default. However, the PUC has not acted upon applications filed where Metro has entered into agreements to transfer these Certificates to new purchasers following defaults by the first purchasers, in spite of having agreed to act upon these matters in an expedited manner.

On March 26, 1984, the PUC revoked its agreement to act in an expedited manner, having decided, sua sponte, to investigate various aspects of the installment sales arrangements and the relationship between Metro, the Association, and the individual purchasers. It is this investigation which Metro and the Association seek to prohibit.*fn3

At least one basis for the PUC investigation is complaints from installment sales purchasers. The PUC is concerned about possible irregularities in the administration of the installment sales program. The Association is not named as a party to the investigation; however, several of the twenty-five areas of concern specified by the PUC, relate to the activities of the Association.

A writ of prohibition is to be used as an extraordinary remedy, within the discretion of the Court. It is not a substitute for an appeal. Carpentertown Coal & Coke Company v. Laird, 360 Pa. 94, 102, 61 A.2d 426, 430 (1948). The writ of prohibition will not issue unless there is a clear usurpation of power by

[ 87 Pa. Commw. Page 631]

    the inferior tribunal and a lack of an adequate alternate remedy. See id.

In ordinary cases where we are considering a demurrer, we are limited to a review of the factual allegations set forth in the petition for review in making a determination of whether a cause of action has been set forth. The posture of this case, however, is somewhat different because of the unique powers and authority of the Public Utility Commission as hereinafter set forth. The real gravamens of the case are the orders of the PUC instituting and defining the scope of the PUC investigation. The petitions for review in effect, challenge the operative effect of those orders. We believe, therefore, that in this instance we must consider the matters set forth in the orders*fn4 as

[ 87 Pa. Commw. Page 632]

    well as those set forth in the petitions for review to determine whether the demurrer should be sustained. It should be noted at this time that copies of the orders are attached to the petitions for review.

The Association argues that the PUC has no jurisdiction in this matter or, in the alternative, that the PUC order exceeds its jurisdiction. By the terms of the Public Utility Code (Code)*fn5 the PUC is given broad powers to investigate public utilities or any other person or corporation subject to the provisions of the Code;*fn6 to enforce the provisions of the Code including modifying or rescinding PUC regulations

[ 87 Pa. Commw. Page 633]

    and orders;*fn7 to vary, reform or revise the terms of any contract between a public utility and another person or corporation where the subject of the contract concerns a public right, benefit, privilege or duty;*fn8 to subpoena and examine witnesses pertinent to any investigation which is undertaken;*fn9 and to approve and exercise supervisory control over contracts between public utilities and affiliated interests.*fn10 In view of this broad authority we do not believe we can say as a matter of law at this point in the proceedings that the PUC is without jurisdiction or is exceeding its jurisdiction by proceeding with its investigation.

The power of prohibition vested in the superior tribunal is triggered only when it is clear that the inferior tribunal has begun to transgress an area clearly beyond its scope of concern. . . . Obviously, that point has not been reached

[ 87 Pa. Commw. Page 634]

    where the inferior tribunal is merely considering the question of its jurisdiction to act. (Citations omitted.)

Troiani Brothers, Inc. v. Pennsylvania Public Utility Commission, 488 Pa. 386, 394-95, 412 A.2d 562, 567 (1980). It may well be that the PUC will determine in the course of the proceedings before it that it lacks jurisdiction to adjudicate the issues affecting the Association but that cannot be the basis for a writ of prohibition at this stage.

We hold that Metro and the Association have simply failed to allege actions by the PUC which are clearly beyond its statutory powers.*fn11 See Akron Borough v. Pennsylvania Public Utility Commission, 453 Pa. 554, 310 A.2d 271 (1973).

Additionally, Metro and the Association have not shown a lack of another adequate remedy. At such time as the PUC may issue a final order in regard to this matter, parties to whom the order is addressed certainly may appeal to this Court. The financial expense and trouble alleged by Metro do not make the remedy of an appeal inadequate. Akron Borough, 453 Pa. at 562, 310 A.2d at 275-276.*fn12

For these reasons, the preliminary objection of the PUC, in the nature of a demurrer, will be sustained and the petitions for review directed to our original jurisdiction will be dismissed.*fn13

[ 87 Pa. Commw. Page 635]

We now consider the motion to quash or dismiss in terms of the petitions addressed to our appellate jurisdiction.

The PUC order of May 14, 1984, from which Metro and the Association appeal is not a final order, having the opposite effect from putting either Metro or the Association "out of court," and is, therefore, interlocutory. See Robertshaw Controls Company v. Human Relations Commission, 67 Pa. Commonwealth Ct. 613, 447 A.2d 1083 (1982). Section 763 of the Judicial Code*fn14 provides that this Court's jurisdiction with respect to the PUC is limited to final orders. See Robertshaw, 67 Pa. Commonwealth Ct. at 616, 447 A.2d at 1085. The PUC order of May 14, 1984, identifies the areas of focus for the proposed PUC investigation, reiterates the PUC's intention to proceed with the investigation and refuses to sever target issues of the investigation which Metro regards as not relevant to itself. We cannot find that to be a final order; consequently, we will grant the PUC's motion to quash the appeals.


The preliminary objection in the nature of a demurrer of the Pennsylvania Public Utility Commission is hereby sustained.

The writ of prohibition is refused and the petitions for review in the above captioned matters filed to this Court's jurisdiction pursuant to Section 761 of the Judicial Code, as amended, 42 Pa. C.S. ยง 761, are dismissed.

The motion to quash or dismiss of the Pennsylvania Public Utility Commission is hereby granted. The appeals brought from the May 14, 1984, order of the Pennsylvania Public Utility Commission are hereby

[ 87 Pa. Commw. Page 636]

    quashed as having been brought from an interlocutory order.

This decision was reached prior to the resignation of Judge Williams, Jr.


Preliminary objection sustained. Writ of prohibition refused. Petition filed to Court's original jurisdiction dismissed. Motion to quash or dismiss appeal from Commission's order granted.

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