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decided: May 21, 1987.


Appeal from the Order of the Pennsylvania Public Utility Commission, in case of In Re: Professional Paramedical Services, Inc.; Medical Carriers, Inc., et al.; Petition for Declaratory Order, Docket No. P-850030, dated June 21, 1985.


Gerald Gornish, with him, Barry F. Schwartz, Wolf, Block, Schorr & Solis-Cohen; Raymond A. Thistle, Jr.; Richard Lyle Berkman, Dechert, Price & Rhoads; Michael A. Tier and F. Emmett Fitzpatrick, Jr., and Brewington W. Croswell, for petitioners.

H. Kirk House, Assistant Counsel, with him, Michael C. Schnierle, Deputy Chief Counsel, and Daniel P. Delaney, Chief Counsel, for respondent.

A. Taylor Williams, with him, Alan Kahn, Abrahams & Lowenstein, for intervenor, Philadelphia Corporation For The Aging.

Judges Colins and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 106 Pa. Commw. Page 280]

A group of Pennsylvania Public Utility Commission (PUC) regulated paratransit carriers in Philadelphia (petitioners), appeal from a declaratory order of the PUC which held that the service required under the Request For Proposal (Proposal) issued by the Philadelphia Corporation for Aging (PCA) was not exclusive service and did not require PUC-certificated passenger carriers to violate various tariff provisions of the Public Utility Code, 66 Pa. C.S. §§ 101-3315, and PUC regulations.

On May 6, 1985, six paratransit operators and one "call" or "demand" carrier filed a Petition for Declaratory Order with the PUC, alleging that uncertainty existed regarding the legality of the PCA's Proposal and the performances of services thereunder. PCA is a non-profit, private corporation which has been designated as an "area agency for the aging" by the Commonwealth Department of Aging.

Among its other functions, PCA, as a contractor with the Department of Aging, arranges for the transportation of senior citizens between points in Philadelphia. A portion of PCA's program, involving senior citizens 65 years of age or older, is subsidized in part by funds derived by the Pennsylvania State Lottery Fund pursuant to Section 203(5)(iii) of the Pennsylvania Urban Mass Transportation Law (PUMTL), Act of January 22, 1968, P.L. 42, as amended, 55 P.S. § 600.203(5)(iii), as administered by the Pennsylvania Department of Transportation (DOT). Pursuant to Section 203(5)(iii) of PUMTL (203 Program), DOT will subsidize and pay 90% of the individual fare for a shared ride directly to a properly-authorized PUC-certificated carrier participating in the 203 Program, while the other 10% is paid to such carrier by the senior citizen or by the third party, such as PCA.

[ 106 Pa. Commw. Page 281]

The PUC has jurisdiction over the regulation of common carriers of passengers by motor vehicles. The petitioners are all common carriers of passengers in paratransit service, duly certificated by the PUC and are all participants in the 203 Program. The petitioners asserted that some parts of the Proposal, issued by PCA to provide senior citizens with transportation in the Philadelphia area to various senior citizen centers, violated the rules and regulations of the PUC and certain statutes of the Commonwealth.

The PUC, on June 21, 1985, without holding an evidentiary hearing, issued its declaratory order determining that the Proposal did not require exclusive service in violation of 52 Pa. Code § 29.353(1), and that it did not violate the limitations on "call" or "demand" service. The PUC also declared that the hourly rate structure was prohibited to call or demand carriers pursuant to 52 Pa. Code § 29.316(a) but was permitted to paratransit carriers pursuant to 52 Pa. Code § 29.355. Finally, the PUC declined to rule on petitioners' allegation that the Proposal's rate structure violated the 203 Program, stating, "in view of the clear legislative directive that the Department of Transportation has broad responsibility over Section 203 funding, petitioners' concerns on this issue would be more appropriately addressed to the Department of Transportation."

On appeal, petitioners contend that each of these actions and declarations by the PUC was error. In response, the PUC argues that each of its declarations is supported by substantial evidence, but additionally asserts that the petition for review should be quashed because a declaratory order entered by the ...

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