Appendix — Bickley v. Pennsylvania Public Utility Commission

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APPENDIX

BICKLEY, APPELLANT, v. PENNSYLVANIA PUBLIC

UTILITY COMMISSION

148 Pa. Superior Ct. 399 (1942)

OPINION BY KELLER, P. J., April 15, 1942:

In 1936, William H. Bickley, trading as Bickley’s Auto

Express, filed two applications with the Public Service Com-

mission. The one asked for a renewal of the certificate of

public convenience issued at A26187, Folder No. 1, evidenc-

ing the commission’s approval of his right to operate motor

vehicles as set forth and limited in said certificate. The other

asked for registration as a common carrier of property, (pur-

suant to regulations established by the commission) under

section 12 Article III, of the Public Service Company Act of

July 26, 1913, P. L. 13874, sometimes known as the Grand-

father clause.

The commission renewed the certificate of public con-

venience, but refused his application for registration as a com-

mon carrier. He appealed to this court. See 129 Pa. Superior

Ct. 115, 195 A. 162.

As it appeared from the record, and was admitted by

counsel for the commission, that Bickley had been engaged as

a common carrier of property prior to the passage of the

Public Service Company Act and had continued to exercise

certain of those rights since then, we sustained the appeal

and remanded the record to the commission with directions

to make specific findings as to (1) the rights, powers and

privileges, as a common carrier of property, possessed, en-

joyed and exercised by appellant on July 26, 1913 when the

Public Service Company Act was passed; and (2) the rights,

powers and privileges so possessed and enjoyed which he con-

tinued to exercise to the date of filing his application for

registration as a common carrier of property; and that a

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certificate of registration be issued him as a common carrier

of property in conformity with said findings. This was in ac-

cordance with the rulings of this court in prior cases, where

we held that the Grandfather clause, supra, protected the

carrier only as respects the particular business—its charac-

ter, field, operation, etc—-it was engaged in and carried on

when the Public Service Company Act was passed, and had

continued to exercise and carry on since that date. See City

Transfer Co. v. P. S. C., £3 Pa. Superior Ct. 210; Hostetter

v. P. S. C.,4110 Pa. Superior Ct. 212, 168 A. 493; Mullin’s Ex-

press v. P. S. C., 113 Pa. Superior Ct. 212, 172 A. 486; Whin-

ney v. P. S. C., 116 Pa. Superior Ct. 472, 176 A. 753. And that

it was the province of the Public Service Commission to de-

termine the facts as to the character, field, operation, etc., of

the business so carried on by the common carrier, whose

rights, privileges and powers therein were preserved to him

by section 12 of Article III aforesaid. Those cases hold that

the fact that a person may have acted as a common carrier,

in a limited territory or for a restricted purpose, prior to

July 26, 1913, did not confer on him the right to conduct the

business of a common carrier generally and all over the state

of Pennsylvania after that date, without the approval of the

Public Service Commission. Cf. United States v. Maher, 307

U. S. 148; Alton R. R. Co. v. United States, 315 U. S. 15;

United States et al. v. Carolina Freight Carriers Corp., 315

U. S. 475;*Howard Hall Co., Inc. v. United States et al., 315

U. S. 495, dealing with the “Grandfather clause” (#206(a) )

of the Federal Motor Carrier Act of 1935, 49 Stat. 543, 551,

49 U.S. Code, #306.

The record having been remanded to the commission was

considered by it and a report was filed in which the commis-

sion found that William H. Bickley was entitled to registration

covering the following rights a8 a common carrier, based upon

the rights, powers and privileges which were exercised by

him as of the passage of the Public Service Company Act, to-

wit: “Transportation of property, including household goods

in use, as a Class D carrier, between points in the city and

county of Philadelphia; transportation of property, as a Class

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D carrier, from points in the city and county of Philadelphia

to Doylestown, New Hope and Warrington, Bucks County,

and Jenkintown, Willow Grove, Hatboro, White Marsh, Amb-

ler, and Lansdale, Montgomery County, and vice versa, ex-

cluding intermediate points ; transportation of household goods

in ise, as a Class D carrier, from points in the city and county

of Philadelphia and the borough of Jenkintown, Montgomery

County, to points in Pennsylvania, and vice versa; all trans-

portation limited and restricted to the operation of 8 motor

trucks, the total maximum gross weight of which, with loads,

shall not exceed 144,000 pounds, as named and described in

the equipment certificate.”

He appealed from this order to this court, assigning the

refusal of the commission to grant him full and unlimited

registration. See 135 Pa. Superior Ct. 490, 5 A. 2d 806. We

affirmed the order on April 28, 1939, holding that the order

was not only supported by sufficient competent evidence in the

record, but also that it was in accordance with his own evi-

dence as to the field, scope and operation of his business when

he originally applied in 1933 for certificate of public conven-

ience. See 135 Pa. Superior Ct. 490, 497, 5 A. 2d 806, and

Beatty v. P. S. C., 110 Pa. Superior Ct. 461, 169, A. 21. He

did not ask for the allowance of an appeal to the Supreme

Court of this Commonwealth or to Supreme sii of the

United States.

On October 1, 1940, a year and five months after our

judgment was entered, he filed a bill in the court of Common

Pleas of Dauphin County, sitting in equity, setting forth that

he had been engaged in business as a common carrier for

four years prior to July 26, 1913; that on February 6, 1936

he had filed with the Public Service Commission—now the

Pennsylvania Public Utility Commission—a petition for the

registration of the rights, powers and privileges which he

claimed he possessed under the provisions of Article III, sec-

tion 12, of the Public Service Company Act. He described in

his bill the course of, and various steps taken in, that proceed-

ing, including the appeals to this court, reported in 129 Pa.

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Superior Ct. 115, 195 A. 162, and 135 Pa. Superior Ct. 490,

5 A 2d 806, and the final judgment, unappealed from, of this

court. He averred that the final order of the commission was

erroneous and that this court erred in accepting the finding

of the commission as a fact finding body; that, depending

upon his counsel, who then represented him before this court,

he, the complainant “erred in not taking an appeal from its

decision affirming the decision of the commission.”

He also averred: “19. That notwithstanding the afore-

said decisions by the Commission and by the Superior Court

of the Commonwealth of Pennsylvania, Complainant con-

tinued to operate and still continues to operate as a common

carrier of property not only between points in Philadelphia,

Montgomery and Bucks Counties, but also between said points

and other points in other counties throughout the Common-

wealth of Pennsylvania.

“20. That the Pennsylvania Public Utility Commission

has made an order upon him to desist from serving shippers

between Philadelphia, Easton, Allentown and Bethlehem and

all other intermediate points, and has notified shippers be-

tween said points to desist from using complainant’s services

or be subject to severe penalties”, a copy of which notice was

annexed to the bill.

He further averred that the order of the commission

limiting his registration as a common carrier and restricting

his operations as such, deprived him of the full enjoyment and

exercise of the rights, powers and privileges he possessed at

the passage of the Public Service Company Law of July 26,

19138, and also of his rights, privileges and immunities as a

citizen of the United States, contrary to the 14th Amendment

of the Constitution of the United States.

He prayed for the issuance of an injunction annulling the

order of the commission and enjoining it from further inter-

fering with, denying or abridging the full enjoyment and

a a na RATE EN ETAL LT CE RELA ED

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exercise of his right to operate as a common carrier through-

out the Commonwealth of Pennsylvania.

The commission filed preliminary objections to the bill,

on the ground, inter alia, that upon the facts averred in the

Bill of Complaint, complainant was not entitled to any relief,

for the reason that the bill on its face showed that the Super-

ior Court had already judicially reviewed the order of the

commission and had adjudicated the legal questions raised

in the bill against the contentions set forth therein by the

complainant, and that no appeal from the decision of the

Superior Court had been taken within the time provided by

law, and the same has not been reversed, vacated or set aside,

and is therefore res judicata.

The court sustained the preliminary objections filed by

the commission and dismissed the bill.

Complainant appealed to this court.

The opinion by President Judge HARGEST, reported in

50 Dauphin County Reports 259, fully justifies the decree

appealed from. It may be summarized as follows:

1. The question of res judicata, in view of the aver-

ments in the bill, was properly raised under Equity Rule 48;

citing Long v. Metzger, 301 Pa. 449, 455, 152 A. 572; Christy

v. State Board of Education, 339 Pa. 65, 14 A. 2d 292;

Kowatch v. Home B. & L. Assn., 181 Pa. Superior Ct. 517,

200 A. 111. See also, Penn-O-Tex Oil & Leasehold Co. v. Big

Four Oil & Gas Co., 298 Pa. 215, 148 A. 92; Schlichtman v.

Crawford et al., 337 Pa. 497, 499, 12 A. 2d 52; Shotkin v.

Presbyterian Board, 343 Pa. 650, 23 A. 2d 419; and the record

of those proceedings, so referred to in the bill, showed that

the alleged rights of the complainant to operate as a common

carrier, under section 12 of Article III of the Public Service

Company Law, had been adjudicated and judicially fixed and

determined therein.

ng

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2. When issues have been adjudicated upon the facts,

between the same parties, the case is concluded not only as to

the questions raised but as to ail questions which might prop-

erly have been raised and passed upon. Citing Hochman v.

Mortgage Finance Corp., 289 Pa. 260, 263-265, 137 A. 252;

Wallace’s Est., 316 Pa. 148, 153, 174 A. 397; Detwiler v. Wil-

liamsburg Bor., 116 Pa. Superior Ct. 21, 176 A. 244.

3. Failure to raise a constitutional question at the prior

hearing or trial will not support a new action by the losing

party upon precisely the same state of facts.

4. Having pursued the statutory remedy by appeal to

the courts given him by section 1101 of the Public Utility Law,

and lost, and not having availed himself of further appeals

under section 1109, he cannot ask for an injunction, under

section 1111, to restrain the enforcement of an order which

was duly affirmed on appeal by this court. The policy of the

law of this Commonwealth is to restrict the litigant to the

statutory re:nedy where one is given. Citing Colteryahn Sani-

tary Dairy v. Milk Control Commission, 332 Pa. 15, 23, 24, 1

A. 2d 775; Taylor v. Moore, 303 Pa. 469, 474, 154 A. 799. See

also, White v. Old York Road Country Club, 318 Pa. 346, 178

A. 8; Ermine v. Frankel, 322 Pa. 70, 185, A. 269.

He might have added the further reason, that one who

comes into equity must come with clean hands; that a com-

plainant who, in his bill, asserts his continued intentional vio-

lation of an order of the Public Service Commission, duly

affirmed by this court, is in no position to ask for equitable

relief from its enforcement.

The assignments of error are overruled and the decree is

affirmed at the costs of the appellant.

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