Citizens' Passenger Railway Co. v. Public Service Commission

Dissenting Opinion by

Keller, J.:

I think this appeal should be quashed as the order to answer is not such a finding or determination as may be appealed from.

A finding or determination which may be appealed from to this court under section 17 of article VI of the Public Service Company Law, as amended by Act of July 11,1917, P. L. 808, is, in my opinion, such a finding or determination as is prescribed in section 10, article VI, of that act, which provides: “Whenever the commission shall investigate any matter complained of, under the provisions of this act, it shall be its duty to make and file of record a written finding, determination or order, either dismissing the complaint or directing the public service company or companies complained against to satisfy the cause of complaint, in whole or to such extent and within such time as the commission may specify, require and order.”

The intervening sections provide for the making and filing of such a written finding, order or determination in hearings instituted by the commission on its own motion (section 11); for the rescinding or modification of such findings or determinations, and rehearings for cause shown (section 12); for the service of such final orders on public service companies (section 13); for applications for rehearing by any public service company or municipal corporation affected, or any party complainant, etc., in respect to any matter determined by the commission and order issued therein (section 14); which shall not operate as a supersedeas or stay the enforcement of the original order, except as the commission by its order may direct (section 15); that after such rehearing, the commission may affirm, rescind, modify or amend its original order (section 16); and then provides in section 17, as amended, for an appeal to this court within thirty days after the filing of any finding or determination or the date of service of any order.

It seems clear to me that the finding, determination or order which may be thus appealed from is one which either (1) dismisses the complaint, or, (2) directs the public service company complained against to satisfy the cause of complaint in whole, or, (3) orders satisfaction to such extent, etc., as the commission may specify, require and order; and does not include a mere preliminary order directing a public service company to file an answer.

I do not hold that the appeal is limited to a final order or judgment as understood in a court of law, viz: one which puts an end to the action, but that it must be such an order as dismisses the complaint or requires a public service company to do something by way of satisfying a complaint and not one that merely directs it to answer in accordance with the procedure provided for by the act.

The Public Service Commission is not a court. No provision is made in the act for demurrers, which belong solely to the procedure in courts. When a complaint has been filed against a public service company, it is its duty to satisfy the complaint, or answer the same in writing (article VI, section 6), and that means just what it says — answer. A demurrer is not an answer and is not contemplated by the act. The commission in this instance has only ordered the respondent company to do what the act says it shall do under such circumstances, viz: answer the complaint and proceed to a hearing.

There is nothing in the act which leads to the conclusion that the Superior Court is to be a sort of advisory body to the Public Service Commission, to which may be referred by appeal any interlocutory order of the commission for advice and counsel during a hearing. The act provides that the attorney general and the counsel selected by him, shall be the advisers of the commission (article IV, section 6). The province of this court is wholly appellate, not advisory, and, it comes into operation only when the commission has made such an order, finding or determination as is provided for in article VI, section 10.

Nor does that section of the act which provides for an appeal to the Supreme Court, from any final judgment, order or decree of this court (article VI, section 30) lead to a different conclusion or give rise to an inference that the term “final” was used therein to mark a distinction from the finding or determination which may be appealed from to this court. A reference to section 24 of the same article will show why the term “final judgment, order or decree” was used in connection with appeals from this court to the Supreme Court.

By section 24, it is provided that this court on appeal from any order, finding or determination of the commission may do one-of three things: (1) If the order appealed from is found to be reasonable and in conformity with law, we are to dismiss the appeal and affirm the order; (2) If we find the order is unreasonable, based upon incompetent evidence or not in conformity with law, we may enter a final decree reversing the order of the commission; or, (3) we may remand the record to the commission with directions to reconsider the matter and to make such order as shall he reasonable and in conformity with law.

It is clear that (1) an affirmance of the order of the commission and (2) a flat reversal of such an order are both final decrees, while a decree remanding the matter to the commission for further consideration is not final. From either of the first two, an appeal may be taken to the Supreme Court; from the third, it may not. The effect of the term “final” as used in section 30 is, therefore, to provide that a decree of this court remanding a case to the Public Service Commission for further consideration and action is not such a judgment, order or decree as may be appealed from to the Supreme Court.

The construction above is in strict conformity with the opinion of the Supreme Court in Peoples Natural Gas Co., Appellant, v. Public Service Commission, 268 Pa. 235; (see Franke v. Johnstown Fuel Supply Co., 70 Pa. Superior Ct. 446); that of the majority of the court, I submit, is not. The Supreme Court in dismissing that appeal did not do so because the order of this court was not final within the contemplation of the act; it was, for it affirmed the order of the commission. The Supreme Court dismissed the appeal in that case as premature because there was no “final finding and determination by the commission of the matter complained of,” since the commission had neither dismissed the complaint nor directed the public service company to satisfy the cause of complaint in whole or in part, but only overruled respondent’s “demurrer” and ordered it to file a tariff and schedule of rates.

When an answer has been filed, the commission will hear the matter and may dismiss the complaint or direct the respondent to satisfy it in whole, or to such extent as the commission may deem proper, and from such an order an appeal may be had to this court. Nor is the commission limited to the precise relief prayed for in the complaint. It may grant other relief if germane to the proceedings instituted. We do not now know what may be developed upon such hearing.

This is the orderly course of procedure and it causes a respondent no more hardship than is visited upon any litigant in a court of law who files a motion to set aside service of process or a plea in abatement, which is overruled ; he can in such case take no appeal until a final judgment is entered.

If an appeal will lie to this court from every order, finding or determination of the commission, however interlocutory in character, a public service company in the hands of astute counsel may postpone and prolong a hearing so that a final order or determination as contemplated in article VI, section 10, will be beyond the reach of almost every individual complainant. Such a course was never contemplated by the framers of the act.

For the above reasons, I would quash the appeal, and thei'efore am consti’ained to enter my dissent.

Henderson, J., joins in this dissent.