Wagner v. Pennsylvania Public Utility Commission
Wagner v. Pennsylvania Public Utility Commission
Opinion of the Court
Opinion by
These appeals are from the consolidated order of the Pennsylvania Public Utility Commission, dated June 27, 1966, granting applications of the Philadelphia Suburban Transportation Company for permission
At hearings on the application, testimony in opposition to that of the applicant was produced by the Township of Haverford, Pennsylvania Department of Highways, William Wagner and other individuals. Following argument, the commission, by its order of June 27, 1966, approved the applications as “necessary or proper for the service, accommodation, convenience, or safety of the public.” Appeals were taken to this Court by William Wagner, the Township of Haverford and the Township of Lower Merion. The Department of Highways did not appeal.
Appellants’ main attack is that there was lack of substantial evidence to support the commission’s finding that approval of the applications was necessary for the service, accommodation, convenience and safety of the public. Our scope of review is limited: Dublin Water Co. v. Pa. P.U.C., 206 Pa. Superior Ct. 180, and
Although the evidence was conflicting we are of the opinion that the order of the commission here is supported by substantial evidence. The question whether a street railway transportation system should convert parts of its service to buses involves, initially, discretion on the part of management; it is for the commission to decide whether management has abused its discretion and whether the conversion to buses is in the public interest: Pittsburgh v. Pa. P.U.C., 172 Pa. Superior Ct. 230, 235, 236, 93 A. 2d 715 (1953); Pittsburgh v. Pa. P.U.C., 174 Pa. Superior Ct. 224, 228, 229, 101 A. 2d 127 (1953).
In Commuters’ Committee v. Pa. P.U.C., 170 Pa. Superior Ct. 596, 604, 605, 88 A. 2d 420 (1952), we set forth the factors to be considered in cases involving abandonment of train service, and substitution of bus service as (1) the extent of the loss on the branch line and its relation to the carrier’s entire operation, (2) use by the public, present and future, (3) relation of the carrier’s loss to the public inconvenience upon discontinuance of service and (4) the adequacy of the substituted service. However, a clear factual distinction exists between cases involving abandonment of interurban train service (and substitution of bus service) and those concerning a changeover from street railway to bus service. As we shall see, the present service of applicant is not a through high speed line, but has some aspects of ordinary street railway service because it involves 47 street intersections.
The testimony as to the public necessity to abandon rail service and convert to buses here, was conflicting. Applicant’s evidence showed a loss on the Ardmore Rail Division of $40,917.00 for 1964 and a saving by substitution of buses of $29,350.00 annually. Opposed to this, Haverford Township’s witness Tennyson esti
In the event that applicant removes its service facilities from Llanerch to 69th Street (estimated to be done within two years), the right of way could be used, if condemned, to widen West Chester Pike. The commission found that the buses proposed would be of a luxury type and would provide more comfortable service. The last rail car was purchased in 1949; rebuilt replacements would cost in excess of $60,000.00. The prospect of obtaining new rail cars is dim, and the repair of the old cars costly. In general, buses will unload and pick up passengers at the curb, while rail passengers must cross the street and dodge traffic to
As the commission states in its brief, “The general question of public preference for buses or trolleys is an open one.” Each form of transportation has its advantages and disadvantages. Appellants introduced a great deal of evidence purporting to show that the rail line is preferable to buses in the matter of safety, service and accommodation of the public. The capacity of the trolleys is 90, with a seating capacity of 60; the buses 57 with a seating capacity of 45; the aisles and seats in the trolley are wider. Under appellants’ estimates the buses take more time to cover the route in question. Buses emit fumes, are less reliable in snowy weather, are more subject to traffic accidents and would add to the traffic congestion already existing on Darby Boad. Bus schedules would be more difficult to maintain in congested highway traffic.
Counsel for appellants, including Lower Merion Township, point to the fact that cities are presently turning to high speed rail lines as a method of solving transportation difficulties. This fact is undoubtedly true. However, the present rail line, though it operates largely over its own right of way, runs in the middle of the street, and, with 47 grade crossings, has some of the characteristics of an ordinary street railway, as opposed to a high speed rail line. The present appeal is in many respects similar to Phila. v. Pa. P.U.C., 185 Pa. Superior Ct. 598, 607, 188 A. 2d 698 (1958), where this Court approved the commission’s order permitting abandonment of street railway service from Philadelphia to Willow Grove, and the substitution of bus service. In that appeal, however, the commission’s order was conditioned upon the widening of a narrow highway (Edge Hill Eoad) by the Department of Highways. There, as here, the evidence was conflicting on
Appellant Wagner, as an individual user, attempted to introduce evidence showing a traffic count without designating the dates on which it was taken. The count included only one inbound and one outbound car per day. Upon objection the examiner excluded this testimony and exhibit as not sufficiently probative. Mr. Wagner did not take steps to raise the question of the exclusion of the testimony before the commission. Since the question was not raised below, it is not properly before the Court: Lang v. Pa. P.U.C., 207 Pa. Superior Ct. 312, 319, 217 A. 2d 750 (1966). In any event, the error, if any, was harmless, as the evidence was merely cumulative. The same considerations apply to the attempt of Mr. Wagner’s counsel to call Haverford Township’s witness, Mr. Tennyson, as an expert witness on Mr. Wagner’s behalf.
Assuming the application for bus service is granted and approved, counsel for Lower Merion Township states that the township officials and applicant agree on a substitution of School Lane for West Athens Avenue in the Ardmore Terminal Loop.
The order of the commission is affirmed, and the record remitted to the commission, with directions to amend the certificate in the respect indicated, as agreed upon by the parties.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.