Opinion
Argued September 9, 1974
October 21, 1974.
Public utilities — Appeals — Public Utility Law, Act 1937, May 28, P. L. 1053 — Appellate Court Jurisdiction Act of 1970, July 31, P. L. 673 — Rules of the Commonwealth Court of Pennsylvania — Specification of errors — Hearing de novo — Scope of appellate review — Error of law — Insufficient evidence — Evidentiary weight — Conflicting evidence.
1. Appeals from the Pennsylvania Public Utility Commission to the Commonwealth Court of Pennsylvania are governed procedurally by provisions of the Public Utility Law, Act 1937, May 28, P. L. 1053, and such procedures are unaffected by provisions of the Appellate Court Jurisdictional Act of 1970, Act 1970, July 31, P. L. 673, or the Rules of the Commonwealth Court of Pennsylvania. [358]
2. Provisions of the Public Utility Law, Act 1937, May 28, P. L. 1053, require that appeal petitions contain specifications of errors which are self-sustaining and which state specifically and concisely wherein the Pennsylvania Public Utility Commission committed error or issued an unlawful order, and such statutory appeal requirements must be strictly followed. [358-9]
3. Provisions of the Public Utility Law, Act 1937, May 28, P. L. 1053, do not permit the Commonwealth Court of Pennsylvania to receive evidence or conduct a de novo hearing in appeals from orders of the Pennsylvania Public Utility Commission, but such orders may be vacated only for error of law or lack of evidence supporting such orders. [359]
4. The Commonwealth Court of Pennsylvania cannot substitute its judgment for that of the Pennsylvania Public Utility Commission nor weigh the evidence nor resolve conflicts in testimony. [359]
Argued September 9, 1974, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 498 C.D. 1974, from the Order of the Pennsylvania Public Utility Commission in case of James F. McCort and Muriel O. McCort v. Philadelphia Electric Company, Order of March 18, 1974.
Complaint with Pennsylvania Public Utility Commission claiming overcharge for electric service. Complaint dismissed. Complainants appealed to the Commonwealth Court of Pennsylvania. Appellees filed motions to quash appeal. Held: Motions sustained. Appeal quashed.
Gerald Jay Pomerantz, with him James F. McCort, for appellants.
Melville G. M. Walwyn, Assistant Counsel, with him Edward Munce, Acting Counsel, for appellee.
Donald Blanken, with him Edward G. Bauer, Jr., and Eugene J. Bradley, for intervening appellee.
James F. McCort and Muriel O. McCort (appellants) filed complaints with the Pennsylvania Public Utility Commission (Commission) against the Philadelphia Electric Company (Philadelphia Electric), alleging that appellants had been overcharged for a period of years by Philadelphia Electric's utilization of defective meters. Also, the complaints alleged that Philadelphia Electric "is taking a major portion of the unpaid ghetto electric billings and supplying them to suburban areas where the minimal increase in cost would not be noticed."
The Commission held a hearing on March 20, 1973, and thereafter issued an order, entered March 21, 1974, dismissing the complaints. On April 17, 1974, appellants filed a notice of appeal from that order. On April 19, 1974, appellants filed a document with this Court entitled "Citation of Errors." The document consisted of 32 paragraphs objecting to the sufficiency, competency, or completeness of the evidence offered by Philadelphia Electric in response to appellants' complaints. The document concluded with the prayer that the Commonwealth Court "order and direct respondent to a trial before a judge or judges of the Commonwealth Court and be further directed to produce [at trial] all documents now in possession of respondents and refused under subpoena."
Philadelphia Electric filed a petition for leave to intervene as party appellee and this petition was granted on May 13, 1974. Both the Commission and Philadelphia Electric filed motions to quash this appeal. These motions are based upon the asserted failure of the appellants to file in this Court the petition, setting forth specifically and concisely the error or errors assigned to the order of the Commission, required by Section 1101(b) of the Pennsylvania Public Utility Law, Act of May 28, 1937, P. L. 1053, as amended, 66 P. S. § 1431(b). As an additional reason for the motions to quash the appeal, it is asserted that the appellants' purported petition of appeal, captioned "Citation of Errors" seeks to obtain a de novo hearing before this Court and does not seek relief from the order of the Commission.
In Pittsburgh v. Public Utility Commission, 3 Pa. Commw. 546, 284 A.2d 808 (1971), we held that article XI of the Public Utility Law continues to enunciate the required procedure for appeals from the Commission to this Court and that neither the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P. L. 673, 17 Pa.C.S.A. § 211.101 et seq., nor the rules of this Court have effected a change of the law in this regard. We adhered to this holding in Upper Merion Township v. Public Utility Commission, 5 Pa. Commw. 476, 291 A.2d 538 (1972), and Basalyga v. Public Utility Commission, 4 Pa. Commw. 310, 286 A.2d 495 (1972).
Our examination of appellants' "Citation of Errors" convinces us that it is ineffective and is not in compliance with the statutory requirements of Section 1101(b) of the Pennsylvania Public Utility Law which provides: ' "(b) All appeals shall be by petition, setting forth specifically and concisely the error or errors assigned to the order of the commission, which petition shall be accompanied by a copy of the order appealed from, and shall also be accompanied by affidavit of the appellant, or of the agent or attorney of such appellant, that the appeal is not taken for the purpose of delay, but because the appellant verily believes that injustice has been done. Each error relied on must be specified particularly and set forth in a separate numbered paragraph of the petition."
Specifications must be self-sustaining and state wherein the Commission was in error or its order unlawful. The right of appeal in public utility proceedings is statutory. The conditions under which this right may be exercised are to be found in the provisions of the statute providing for such appeals and the prescribed procedure must be strictly pursued. George Hyam Associates, Inc. v. Pennsylvania Public Utility Commissions, 199 Pa. Super. 3, 184 A.2d 414 (1962).
There is also merit in the additional reason advanced in support of the motions to quash this appeal. This Court is not empowered to receive evidence and hold a de novo hearing as requested by the appellants. Section 1106 of the Public Utility Law, 66 P. S. § 1436, provides in part that "[n]o evidence shall be received at the hearing on any appeal. . . ." Our scope of review is delineated by the Public Utility Law which provides, in Section 1107, 66 P. S. § 1437, that the order of the Commission shall not be vacated or set aside on appeal except for error of law or lack of evidence to support it. Tranter v. Public Utility Commission, 4 Pa. Commw. 585, 288 A.2d 837 (1972). We may not conceive an independent judgment and substitute it for the judgment of the Commission and we may not indulge in processes of weighing evidence and resolving conflicting testimony. McNaughton Bros., Inc. v. Pennsylvania Public Utility Commission, 2 Pa. Commw. 319, 278 A.2d 186 (1971).
Accordingly, for these reasons, we make the following
ORDER
AND NOW, this 21st day of October, 1974, the motions of the Pennsylvania Public Utiilty Commission and the Philadelphia Electric Company to quash the appeal of James F. McCort and Muriel O. McCort from the Commission's order dated March 21, 1974, are hereby granted and the said appeal is hereby quashed.