Shanaman v. YELLOW CAB CO. OF PHILA. ( 1980 )

OPINION OF THE COURT

LARSEN, Justice.

On June 19, 1980, Act 69 of 1980 (an act amending the Public Utility Code, 66 Pa.C.S. § 1103) was signed into law by Governor Thornburgh and took effect on that date. Act 69 was intended to increase, in expedited fashion, the availability of taxicab service in “cities of the first class,” i.e., Philadelphia. The legislature found the present service in Philadelphia “wholly inadequate” (Preamble to Act 69) to meet present needs, and gave the Pennsylvania Public Utility Commission (PUC), the appellant, the authority to grant, without hearing, immediate temporary operating certificates of public convenience for taxicab service, subject to further investigation before a permanent certificate would be granted. 66 Pa.C.S. § 1103(c)(4). Additionally, Act 69 provides:

The transfer of a certificate of public convenience, by any means or device, shall be subject to the prior approval of the commission which may in its sole or peculiar discretion as it deems appropriate, attach such conditions, including the appropriate allocation of proceeds, as it may find to be necessary or proper, (emphasis added) 66 Pa.C.S. § 1103(7).

On July 10, 1980, a joint application for the transfer of a certificate of public convenience to operate a taxicab in Philadelphia was filed by Yellow Cab of Philadelphia, appellee, and Duke Cab Company. The application requested the PUC to expedite the approval of the transfer of the right to operate one taxicab (Yellow Cab has authority to operate 800 taxicabs in Philadelphia) to Duke Cab Company.

Only eight days later, on July 18,1980, Yellow Cab initiated the instant proceeding by filing with the Commonwealth Court a complaint in equity requesting that court, inter alia, to direct the PUC to process the transfer application on an expedited basis. A hearing on this complaint was held on July 22, 1980, following which the Commonwealth Court issued the following preliminary injunction:

NOW July 22, 1980, it is hereby ordered as follows:

1. The Pennsylvania Public Utility Commission shall, on or before September 1, 1980, enter its decision on the application of Yellow Cab Company of Philadelphia to transfer one operating right or certificate to Duke Cab Company, Inc.

2. In all other respects, Yellow Cab Company of Philadelphia’s motion for preliminary injunction is denied.

The PUC has appealed this order. For the reasons stated below, we reverse that order and dissolve the injunction.

Our standard of review of preliminary injunctions is well settled.

As a preliminary consideration, we recognize that on an appeal from the grant or denial of a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any apparently reasonable grounds for the action of the court below. Only if it is plain that no grounds exist to support the decree or that the rule of law relied upon was palpably erroneous or misapplied will we interfere with the decision of the Chancellor. ... In order to sustain a preliminary injunction, the plaintiff’s right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted. .. .

Bell v. Thornburgh, 491 Pa. 263, 267, 420 A.2d 443, 445 (1980). (citations omitted). Further, a mandatory preliminary injunction, such as is involved here, “should be used only in rare cases and certainly more sparingly than one which is merely prohibitory.” Roberts v. School Board of the City of Scranton, 462 Pa. 464, 469-70, 341 A.2d 475, 478 (1975). Also, the mandatory preliminary injunction is designed to restore the status quo to the “last actual, peaceable [and] noncontested status which preceded the pending controversy.” Commonwealth v. Coward, 489 Pa. 327, 342, 414 A.2d 91, 99 (1980) (quoting Commonwealth v. Cohen, 150 Pa.Super. 487, 489, 28 A.2d 723, 724 (1942)). Applying these principles to the instant case, it is apparent the preliminary injunction was improper.

The Commonwealth Court made no finding with respect to Yellow Cab’s, the plaintiff’s, right to relief (i.e., the legal right to expedite their application for transfer). If no such right exists, the preliminary injunction should not have been granted. No such right exists.¹

Act 69 gave the PUC broad discretion to approve or disapprove the transfer of a certificate of public convenience. Certainly nothing in the language of section 7, 66 Pa.C.S. § 1103(c)(7), see text supra, can be read to place time constraints on PUC proceedings on transfer applications. Act 69 does contemplate that the PUC will give priority generally to the taxicab service in Philadelphia, but it does not purport to, or even suggest that, transfer applications should receive priority over new applications for certificates.

Rather, Act 69 directs the PUC to “issue promptly such additional certificates as are necessary to insure that 1,400 taxicabs have authority to operate. . . . ” To achieve this goal, the PUC has decided to process applications, whether for new certificates or for transfer, on a chronological basis in order of filing. Some applications date back to 1975. This agency decision is an eminently reasonable one, and Yellow Cab has not introduced one iota of evidence to indicate their transfer application should receive special consideration over all other previous applications. Yellow Cab and the PUC stipulated that Yellow Cab would suffer immediate and irreparable harm if the preliminary injunction were -not granted, but there has been no attempt to demonstrate that any such harm would be unique to Yellow Cab. It can be reasonably assumed that similar harm would attend delays in processing for all applicants and that the harm would be proportionate to the time period elapsed between filing of an application and final PUC action upon it.

From the foregoing, Yellow Cab has failed to demonstrate any legal or factual right to the relief requested.

Moreover, as noted, the purpose of a mandatory preliminary injunction is to restore the status quo to the last actual and noncontested status which preceded the pending controversy. Despite Yellow Cab’s protestations to the contrary, the preliminary injunction herein has disrupted, rather than restored, the status quo. The status quo is: Yellow Cab holds a certificate of public convenience, wishes to transfer that certificate to Duke Cab Company, and must pursue normal PUC procedures for transfer. The preliminary injunction has imposed a duty on the PUC to accelerate its procedure for one particular application, thus granting that application exalted status as compared with all other applications. It is fiction to suggest, as does Yellow Cab, that the mandatory preliminary injunction “restored the status quo.”

Yellow Cab has also cited numerous federal court cases for the proposition that “a party may obtain relief against undue or improper delay in the action of an administrative agency.” Brief for Appellee at 13, citing, e.g., Smith v. Illinois Bell Telephone Co., 270 U.S. 587, 46 S.Ct. 408, 70 L.Ed. 747 (1926). We have no quarrel with this argument, but find it impossible on this record to establish any delay, let alone any undue or improper delay. Yellow Cab filed its complaint in equity a mere 8 days after the joint application for transfer was filed. The hearing on the complaint was held only 12 days after the joint application was filed. It is simply unreasonable for Yellow Cab to expect to have their application considered within 12 days of its filing, especially in light of the hundreds of applications which preceded its own.

Accordingly, the order of the Commonwealth Court is reversed and the preliminary injunction is dissolved.

NIX, J., filed a dissenting opinion. KAUFFMAN, J., filed a dissenting opinion.

1 . Of the three requisite elements, the Commonwealth Court made a finding of only the irreparable harm and immediate need for relief, but failed to even discuss Yellow Cab’s right to the requested relief.