           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Transportation              :
Service, Inc.,                           :
                        Petitioner       :
                                         :
             v.                          :   No. 1709 C.D. 2016
                                         :   Argued: May 1, 2017
Pennsylvania Public Utility              :
Commission,                              :
                         Respondent      :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE JULIA K. HEARTHWAY, Judge
        HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION
BY JUDGE BROBSON                             FILED: July 3, 2017

             Pennsylvania Transportation Service, Inc. (PTS) petitions for review
of an order of the Pennsylvania Public Utility Commission (PUC), which granted,
in part, PTS’s petition for reconsideration of staff action (Petition). PTS filed the
Petition in response to a PUC decision, which modified the description of
operating rights in PTS’s certificate of public convenience. For the reasons that
follow, we affirm.
             PTS is a Pennsylvania corporation engaged in the for-hire
transportation (taxicab) business. On April 3, 2015, PTS purchased certain call or
demand (taxi) rights issued by the PUC to Concord Limousine, Inc. t/a Concord
Coach Taxi (Concord).       The rights PTS purchased on April 3, 2015, were
originally transferred to Concord from Boston Coach-Pennsylvania Corp. t/d/b/a
Boston Coach (Boston). With regard to the taxi rights transferred from Boston to
Concord, an administrative law judge (ALJ) issued an opinion and order dated
January 14, 2000, describing the transferred rights as follows:
              To transport as a common carrier by motor vehicle,
              persons upon call or demand: (1) in the Bala-Cynwyd
              Section of Lower Merion Township, Montgomery
              County, between the Schuylkill River on the east and
              Wynnewood Avenue on the west and extending to Rock
              Hill Road, Bryn Mawr Avenue and Montgomery Avenue
              on the north and from points in that area to other points
              in Pennsylvania, and vice versa; all transportation to be
              on call by telephone to the carrier’s office; and (2) in that
              part of the City of Philadelphia, Philadelphia County,
              beginning at the intersection of City Line Avenue
              and 52nd Street, thence continuing south along 52nd
              Street to Wynnefield Avenue, thence continuing south
              along Wynnefield Avenue to Belmont Avenue, thence
              continuing south along Belmont Avenue to its
              intersection with Montgomery Avenue, thence
              continuing in an easterly direction along Montgomery
              Avenue until the same intersects with the Schuylkill
              River, thence continuing [in] a northerly direction to City
              Line Avenue and the place of beginning; all
              transportation to be upon call by telephone to the
              carrier’s office.
(Reproduced Record (R.R.) at P60-P61.)1


              On April 3, 2015, PTS filed with the PUC an application for approval
of the transfer of rights from Concord to PTS. On March 1, 2016,2 the Secretary of

       1
          Citations to the reproduced record are consistent with the pagination in the reproduced
record filed by PTS, which does not conform to the requirements of Pa. R.A.P. 2173.
       2
          The Secretary of the PUC originally issued a letter on February 5, 2016; however, that
letter contained typographical errors. The Secretary of the PUC issued a corrected letter dated
March 1, 2016. The typographical errors and the dates of the letters are not relevant to the
instant appeal.



                                               2
the PUC issued a letter notifying PTS that its application was approved, but that
the PUC had modified the description of the transferred operating rights.
Specifically, the March 1, 2016 letter omitted the portion of the description of
operating rights in the City of Philadelphia (the City) and included the following
note:
                   The transferor’s authority originally also included an area
                   in the city and county of Philadelphia. That area now
                   falls under the jurisdiction of the Philadelphia Parking
                   Authority [(PPA)], and this Commission has no power to
                   grant the transfer of that portion of the original authority.
                   Additionally, the words vice versa were included by error
                   in the description. These words were only in the
                   transferor’s tariff, and not in the original order granting
                   authority; therefore, vice versa has not been included.
(R.R. at P67.)3
                   On March 21, 2016, PTS filed a “petition for reconsideration of staff
action” with the PUC, arguing that the PUC did not have authority to make
material changes to the transferred operating rights. On September 15, 2016, the


          3
              Specifically, the following language was omitted from the description of operating
rights:
          and (2) in that part of the City of Philadelphia, Philadelphia County, beginning at
          the intersection of City Line Avenue and 52nd Street, thence continuing south
          along 52nd Street to Wynnefield Avenue, thence continuing south along
          Wynnefield Avenue to Belmont Avenue, thence continuing south along Belmont
          Avenue to its intersection with Montgomery Avenue, thence continuing in an
          easterly direction along Montgomery Avenue until the same intersects with the
          Schuylkill River, thence continuing [in] a northerly direction to City Line Avenue
          and the place of beginning; all transportation to be upon call by telephone to the
          carrier’s office.
(R.R. at P61.) Throughout this opinion, we refer to the omitted portion of the transferred
operational rights as the “Philadelphia rights.”



                                                  3
PUC granted PTS’s request, in part, by restoring the vice versa rights excluded
pursuant to the March 1, 2016 letter. The PUC, however, explained that the PPA,
not the PUC, had authority to alter or approve a transfer of operational rights
within the City.4 PTS subsequently filed in this Court a petition for review of the
PUC’s September 15, 2016 order.
               In its petition for review,5 PTS argues that the PUC violated its right
to due process by partially revoking PTS’s operational rights without holding a
hearing on the issue of whether the Philadelphia rights should be excluded from the
certificate.    The PUC contends that it had no jurisdiction to include the
Philadelphia rights because the authority to grant operational rights within the City
is vested solely in the PPA.
               Prior to 2004, the PUC was the sole agency responsible for the
regulation of taxicab operations throughout Pennsylvania, including the City. With
respect to taxicabs operating on a City-wide basis, the PUC’s duties and


       4
         On December 16, 2016, the PUC issued a notice dismissing PTS’s application to begin
service for failure to comply with certain PUC requirements within 60 days of the “Commission
Order/Secretarial Letter” approving PTS’s application, presumably referring to the
September 15, 2016 order of the PUC. (R.R. at P147.) On January 3, 2017, PTS filed a petition
for reconsideration of the December 16, 2016 notice, asserting that because it had petitioned this
Court for review of the September 15, 2016 opinion and order, that order was not yet final, and,
thus, PTS was not obligated to satisfy the PUC requirements until the final disposition of the
instant matter. The disposition of PTS’s petition for reconsideration has not been made part of
the record and has no bearing on our decision in the instant matter.
       5
          Appellate review of a PUC order is limited to determining whether a constitutional
violation, an error of law, or a violation of PUC procedure has occurred and whether necessary
findings of fact are supported by substantial evidence. 2 Pa. C.S. § 704; Popowsky v. Pa. Pub.
Util. Comm’n, 910 A.2d 38, 48 (Pa. 2006).




                                                4
responsibilities were set forth in what was commonly known as the Medallion
Act, 66 Pa. C.S. §§ 2401-2416.6 Concord and PTS, however, are considered
“partial rights” taxicab companies, meaning they have been granted authority to
operate in part, but not in all, of the City. As partial rights taxicab companies, both
Concord and PTS were not subject to the provisions of the Medallion Act, but
were, instead, regulated by the Public Utility Code, 66 Pa. C.S. §§ 101-3316.
                In 2004, the Legislature enacted an amendment to the Parking
Authorities Law (Law),7 which, inter alia, repealed the Medallion Act and
transferred jurisdiction and regulation of taxicab service within the City from the
PUC to the PPA. The amendment is commonly referred to as Act 94.8 The PUC
retained jurisdiction over the regulation of taxicab service throughout the
remaining portions of the Commonwealth.
                We have previously held that the PUC continues to regulate taxicab
companies with pre-Act 94 rights to the extent that they operate outside of the City.
Germantown         Cab     Co.    v.    Pub.   Util.   Comm’n,     97   A.3d    410,   417
(Pa. Cmwlth. 2014). We have also held that the PPA regulates taxicab companies
with pre-Act 94 rights to the extent that they operate within the City. Bucks Cnty.
Servs., Inc. v. Phila. Parking Auth., 104 A.3d 604, 611 (Pa. Cmwlth. 2014). Thus,
the Legislature, by enacting Act 94, created a regulatory system in which the PUC




      6
          Repealed by the Act of December 30, 2002, P.L. 2001.
      7
       53 Pa. C.S. §§ 5501-5517, 5701-5745.            The Law is part of the General Local
Government Code. See 53 Pa. C.S. § 101.
      8
          Act of July 16, 2004, P.L. 758.



                                               5
and the PPA share jurisdiction over the operation of taxicab companies to the
extent that such companies operate both within and without the City.
               Because taxicab service is considered a public utility, taxicab
operators must acquire a certificate of public convenience prior to beginning
operations.       66 Pa. C.S. § 1101; Ronald Cab, Inc. v. Pa. Pub. Util.
Comm’n, 76 A.3d 74, 75 (Pa. Cmwlth. 2013).                   After approving a transfer of
operational rights between taxicab companies, the PUC must set forth and describe
the limits of the territory in which the acquiring taxicab company may provide
service—i.e., a description of the taxicab company’s operational rights.
Susquehanna Area Reg’l Airport Auth. v. Pa. Pub. Util. Comm’n, 911 A.2d 612,
619 (Pa. Cmwlth. 2006), appeal denied, 923 A.2d 412 (Pa. 2007).
               With respect to the transfer of “partial rights” within the City,
Section 5711(c)(5) of the Law, 53 Pa. C.S. § 5711(c)(5), provides:
                      The transfer of a certificate of public convenience,
               by any means or device, shall be subject to the prior
               approval of the [PPA] 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.)          Similarly, Section 1103(a) of the Public Utility Code,
66 Pa. C.S. § 1103(a), authorizes the PUC to grant certificates of public
convenience to taxicab companies operating outside of the City. 9 The PUC has

      9
          Section 1103(a) of the Public Utility Code provides:
              Every application for a certificate of public convenience shall be made to
      the commission in writing, be verified by oath or affirmation, and be in such
      form, and contain such information, as the commission may require by its
      regulations. A certificate of public convenience shall be granted by order of the
      commission, only if the commission shall find or determine that the granting of
(Footnote continued on next page…)

                                                6
authority to revoke or amend certificates of public convenience upon due cause
being shown. P.D.J. Cab Co. v. Pa. Pub. Util. Comm’n, 501 A.2d 342, 344-45
(Pa. Cmwlth. 1985).
              PTS argues that the PUC violated its right to due process by partially
revoking its operating rights without holding a hearing on the issue of whether the
Philadelphia rights should be excluded from the description of operating rights.
PTS’s argument is founded on the presumption that it properly filed an application
to approve the transfer of operating rights and was wrongfully denied part of the
acquired operating rights without notice and an opportunity to be heard. PTS’s
argument, however, fails because it is based on the faulty assumption that the PUC
had authority to grant those rights even if it held a hearing on PTS’s application.
As we have previously held, this is not the case.
              In Bucks County, we reaffirmed “this Court’s prior rulings confirming
the [PPA’s] regulatory reach with respect to [taxicab companies] when providing
taxicab service within the City.” Bucks Cnty., 104 A.3d at 609. We did not


(continued…)

       such certificate is necessary or proper for the service, accommodation,
       convenience, or safety of the public. The commission, in granting such
       certificate, may impose such conditions as it may deem to be just and reasonable.
       In every case, the commission shall make a finding or determination in writing,
       stating whether or not its approval is granted. Any holder of a certificate of public
       convenience, exercising the authority conferred by such certificate, shall be
       deemed to have waived any and all objections to the terms and conditions of such
       certificate.
See also Lehigh Valley Transp. Servs., Inc. v. Pa. Pub. Util. Comm’n, 56 A.3d 49, 55 (Pa.
Cmwlth. 2012) (describing procedure and requirements for application to PUC for certificate of
public convenience.).



                                                7
conclude that the PPA’s authority was limited to enforcing violations of PPA
regulations within the City or that the PPA had authority only to issue new
certificates of public convenience with operating rights within the City. We also
opined that Section 5711(c)(2.1) of the Law, 53 Pa. C.S. § 5711(c)(2.1),
               does not demand that the [PPA] issue a certificate of
               public convenience to those companies that had existing
               service rights within the City prior to Act 94’s passage.
               Instead, this section appears to allow the [PPA] to issue
               certificates of public convenience to provide
               non-citywide call or demand service. Because, however,
               [taxicab companies] had that authority prior to the
               passage of Act 94, they were not required to obtain, and
               the [PPA] was not required to issue, a new certificate of
               public convenience.
Id. Thus, the portion of those taxicab companies’ operating rights within the City
has been within the jurisdiction of the PPA since the effective date of Act 94, but
the PPA was not required to issue separate certificates of public convenience to
taxicab companies with existing rights. Only the PPA, however, has the authority
to issue a new certificate of public convenience that includes rights within the City.
               Moreover, it does not appear that the PUC expressly deprived PTS of
its operational rights by omitting the Philadelphia rights.10                       “Key to the
determination of whether a party has been denied procedural due process is


       10
          To the extent PTS argues that Concord was somehow deprived of its due process rights
by the PUC’s omission of the Philadelphia rights from PTS’s certificate of public convenience,
such an argument is irrelevant to the instant matter as Concord is not a party to this action and
PTS may not seek to enforce the rights of a third party on appeal. See Pa. Dental Ass’n v. Dep’t
of Health, 461 A.2d 329, 331 (Pa. Cmwlth. 1983) (“One may not claim standing, ordinarily, to
vindicate the constitutional rights of some third party [unless] the relationship of the litigant and
the third party is inextricably bound up with the activity the litigant seeks to pursue and there is
some obstacle to the assertion by the third party of his own right.” (internal citation omitted)).



                                                 8
whether that party has suffered demonstrable prejudice.” Sobat v. Borough of
Midland, 141 A.3d 618, 627 n.9 (Pa. Cmwlth. 2016). The March 1, 2016 letter
from the PUC noted only that the PUC was without authority to grant a transfer of
the Philadelphia rights.       The PUC did not express that it was revoking or
modifying PTS’s rights to exclude the Philadelphia rights.                       Rather, the
March 1, 2016 letter seemed to indicate that PTS would simply need to seek
additional approval from the PPA for the transfer of the Philadelphia rights. Thus,
PTS fails to demonstrate that the PUC’s March 1, 2016 letter caused it
“demonstrable prejudice” simply by noting that PTS cannot obtain all of the relief
that it seeks from the PUC.
              The PPA has held complete authority over taxicab companies
providing service within the City since Act 94 went into effect. We now clarify
that where a taxicab company possessing operational rights both within and
without the City seeks to transfer those rights to another entity, the PPA has
exclusive authority to grant, deny, or impose conditions on the transfer of the
portion of the operational rights within the City.11 The PUC retains authority over
the transfer of operational rights outside of the City.


       11
          During these proceedings, the PUC questioned whether Concord’s Philadelphia rights
had been cancelled by the PPA pursuant to a July 14, 2016 decision and order in the matter of
Philadelphia Parking Authority v. Concord Limousine, Inc., Docket No. C-16-01-035. On
May 24, 2017, PTS filed an application with this Court, seeking a remand to the PUC for further
consideration and the opportunity to be heard regarding the impact of the PPA’s July 14, 2016
decision and order on PTS’s application for the transfer of rights from Concord to PTS. By order
dated June 8, 2017, this Court denied PTS’s application. We note, however, that to the extent
that PTS seeks to challenge the PPA’s July 14, 2016 decision and order and/or seek approval of
the transfer of the Philadelphia rights from Concord to PTS, the PUC does not appear to be the
proper forum.



                                               9
Accordingly, we affirm the PUC’s September 15, 2016 order.




                 P. KEVIN BROBSON, Judge




                         10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Transportation            :
Service, Inc.,                         :
                        Petitioner     :
                                       :
            v.                         :   No. 1709 C.D. 2016
                                       :
Pennsylvania Public Utility            :
Commission,                            :
                         Respondent    :



                                     ORDER


            AND NOW, this 3rd day of July, 2017, the order of the Pennsylvania
Public Utility Commission, dated September 15, 2016, is hereby AFFIRMED.




                              P. KEVIN BROBSON, Judge
