Summary
In Brinks, the appellant asserted that the petition filed with the Commission more than 15 days after the entry of the order and, therefore, too late to be one for rehearing, was one for amendment and rescission which can be filed at any time.
Summary of this case from P.U.C., et al. v. Reading CompanyOpinion
November 25, 1974.
Public utilities — Time of appeal — Appellate Court Jurisdiction Act of 1970, July 31, P.L. 673 — Repeal of inconsistent statutory provisions — Public Utility Law, Act 1937, May 28, P.L. 1053 — Petition for modification — Circumvention of appeal time requirements — New evidence — Change of circumstances — Estoppel — Late filing — Quashing appeal.
1. Provisions of the Appellate Court Jurisdiction Act of 1970, Act 1970, July 31, P.L. 673, repealed, as inconsistent, the portions of the Public Utility Law, Act 1937, May 28, P.L. 1053, governing the measurement of the appeal period, and an appeal from an order of the Pennsylvania Public Utility Commission must be filed within thirty days from its entry. [303]
2. The time limit governing the filing of an appeal from an order of the Pennsylvania Public Utility Commission cannot be circumvented by filing a petition for rescission or modification of the order, and such petition is only appropriate where new evidence or a change of circumstances justifies a modification of the order. [304-5]
3. The Pennsylvania Public Utility Commission is not estopped from asserting that an appeal was untimely filed because it accepted a petition to modify after the expiration of the requisite appeal periods, and appellant could not have made a timely filing even had he been notified that the filing was defective. [305-6]
4. In the absence of a showing of fraud or a breakdown of operations of the Pennsylvania Public Utility Commission as a result of misconduct of its officers, an appeal belatedly filed from an order of the Commission must be quashed. [306]
Submitted on briefs September 16, 1974, to President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 443 C.D. 1974, from the Order of the Pennsylvania Public Utility Commission in case of Application of Federated Security, Inc. No. 92573, F.4.
Application with Pennsylvania Public Utility Commission for certificate of public convenience. Application granted. Protestants filed petition to rescind or modify. Petition denied. Protestants appealed to the Commonwealth Court of Pennsylvania. Appeal quashed. Appellants filed petition to reconsider. Petition granted. Motion to quash reconsidered. Held: Motion granted. Appeal dismissed.
James W. Patterson, with him, of counsel, Morgan, Lewis Bockius, for appellants. Melville G. M. Walwyn, Assistant Counsel, with him Edward Munce, Counsel, for appellee.
Jerome Solomon, for intervening appellee.
Before us is a motion filed by the Pennsylvania Public Utility Commission (PUC) to quash Brink's, Inc., Purolator Courier Corp., Purolator Security, Inc., and Protective Motor Service Co.'s (hereinafter referred to collectively as "Appellant"), appeal from an order of P.U.C., dated March 5, 1974, which denied Appellant's petition to modify and rescind a short form order entered by it on August 17, 1973.
Since the dates and actions attendant thereto are controlling, we recite them. On October 21, 1970, Federated Security, Inc. (Intervening Appellee) filed an application with P.U.C. in which it requested a certificate of public convenience to transport monies, bullions, securities and other valuables as a, common carrier to points within 150 miles of the City of Pittsburgh. Protests were duly filed by Appellant, and following a hearing on the application, P.U.C., on August 17, 1973, issued a short form order conditionally approving the application. Appellant was served notice of this order on September 7, 1973, and on September 27, 1973, it filed a petition for rescission or modification of the short form order in which it also requested an oral argument and supersedeas thereon. By order dated March 5, 1974, P.U.C. denied the prayers of the petition, and proper service of the order was made on Appellant on March 7, 1974. Appellant thereupon timely filed the instant appeal with this Court on April 5, 1974. On July 10, 1974, P.U.C. filed the instant motion to quash or dismiss, and on July 25, 1974, when Appellant failed to file an answer, the motion was granted. Appellant then applied for reconsideration and sought to vacate the quashal. We vacated our order and now before us is the motion to quash.
Of critical significance in our consideration of the question of the justiciability of this appeal is the import of our recent holding in Purolator Courier Corp. v. P.U.C., 13 Pa. Commw. 444, 319 A.2d 688 (1974). There we held that Section 502 of the Appellate Court Jurisdiction Act (ACJA), Act of July 31, 1970, P.L. 673, as amended, 17 Pa.C.S.A. § 211.502 (Supp. 1974-1975), repealed as inconsistent that portion of Section 1101 of the Public Utility Law, 66 P. S. § 1431 (Supp. 1974-1975), which measured the thirty day appeal period to this Court from "the service of any order by the commission", in contradistinction to "within thirty days of its entry" as set forth in Section 502 of ACJA. P.U.C. entered its short form order conditionally approving the certificate of convenience at A.92573F.4 on August 17, 1973, and appellant was given formal service of the filing of the order on September 7, 1973. Appellant therefore had until September 17, 1973, to file its appeal.
Act of May 28, 1937, P.L. 1053, as amended, 66 P. S. § 1101 et seq.
A second order was served on appellant on September 10, 1973, correcting Intervening Appellee's name from Federated Detective Bureaus, Inc., to Federated Security, Inc. to reflect its change in corporate name during the pendency of the application. As our subsequent discussion will indicate, the date of service is only relevant to the running of the fifteen day limitations period under Section 1006 of the Public Utility Law, 66 P. S. § 1396, and appellant did not file a Section 1006 petition within fifteen days of service of either order.
"When any period of time is referred to in any statute, such period in all cases . . . shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on . . . Sunday . . . such day shall be omitted from the computation." Statutory Construction Act of 1972, 1 Pa. S. § 1906. The thirtieth day here was September 16, 1973, a Sunday, and therefore the appeal period was extended another day.
Instead of appealing this short form order, Appellant, on September 27, 1973, filed a petition for rescission or modification and further hearing with P.U.C. under Section 1007 of the Public Utility Law, 66 P. S. § 1397, and thereafter timely appealed P.U.C.'s denial of this petition. P.U.C. and Intervening Appellee argue that the petition for modification was untimely as measured by the fifteen day limitation period provided by Section 1006, 66 P. S. § 1396, which relates to petitions for rehearings, and that by allowing this appeal Appellant could circumvent the periods of limitation imposed by Sections 1006 and 1101.
We agree with the latter assertion and, accordingly, quash the appeal.
There is no question but that a proper Section 1007 petition may be filed at any time after the entry of a short form order, and that an appeal lies under Section 1101 from P.U.C.'s refusal to rescind or modify a previous order under Section 1007. Crooks v. Pennsylvania Public Utility Commission, 1 Pa. Commw. 583, 276 A.2d 364 (1971); Department of Highways v. Pennsylvania Public Utility Commission, 197 Pa. Super. 350, 178 A.2d 820 (1962). It is equally clear, however, that a Section 1007 petition for rescission or modification "may not be used to circumvent the time limitation for seeking a rehearing under Section 1006, 66 P. S. § 1396, or the taking of an appeal under Section 1101, 66 P. S. § 1306. Department of Highways v. Pennsylvania Public Utility Commission, supra." Department of Transportation v. P.U.C., 3 Pa. Commw. 554, 559, 284 A.2d 330, 333 (1971). See also Beaver Valley Water Company v. Pennsylvania Public Utility Commission, 140 Pa. Super. 297, 14 A.2d 205 (1940). The proper function of a Section 1007 petition is to allow P.U.C. to reconsider a previous order in the light of newly discovered evidence or a change in circumstances. Crooks v. Pennsylvania Public Utility Commission, supra.
In reviewing Appellant's petition for modification or rescission, we find no allegation of the presence of new evidence or of a change in circumstances which would justify modification. Instead Appellant alleged in its petition that the short form order was arbitrary and capricious, and unsupported by the evidence — all contentions which could and should properly be made in a Section 1006 rehearing or on an appeal to this Court. For us to now consider these contentions on appeal from the denial of its Section 1007 petition would effectively allow Appellant to circumvent the Section 1006 fifteen day and Section 1001 thirty day periods of limitation, and would vitiate the express holding of Department of Transportation v. P.U.C., supra.
Appellant in further pursuit of its cause, argues that P.U.C. should be estopped from now contending that Appellant's modification petition was untimely or that it was in reality a Section 1006 rehearing petition because P.U.C. had waived these objections when it accepted the petition on September 27, 1973, and thereafter issued a long form order when Appellant filed its appeal in this Court. Appellant cites, inter alia, Wolfsohn v. Hankin, 376 U.S. 203 (1964); Thompson v. Immigration and Naturalization Service, 375 U.S. 384 (1964), and Christiansen v. Zoning Board of Adjustment, 1 Pa. Commw. 32, 271 A.2d 889 (1970) in support of its position that P.U.C. "lulled it into a false sense of security" by accepting its petition as an appropriate pleading at a time when it could have otherwise filed a valid petition. In these cases each filing, although defective, was made prior to the expiration of the statutory appeal period, and had the appellant in these cases been properly notified of its defective filing, adequate time remained in which to effect a proper filing. Here, Appellant's petition, irrespective of its nomenclature, was filed on September 27, 1973, which was more than fifteen days after service of the short form order for purposes of a Section 1006 rehearing, and more than thirty days after entry of the short form order for purposes of an appeal to this Court under Section 1101. Since Appellant has not alleged fraud or a breakdown in P.U.C.'s operations as a result of the conduct of its officers, its petition was untimely, and the appeal therefrom must be quashed. See Pittsburg v. P.U.C., 3 Pa. Commw. 546, 284 A.2d 808 (1971).
P.U.C.'s motion to quash is hereby granted and this appeal is dismissed.