Southeastern Pennsylvania Transportation Authority v. Yellow Limousine Service, Inc.

Opinion by Judge Rogers, The Southeastern Pennsylvania Transportation Authority (SEPTA) here appeals from an order of the Court of Common Pleas of Philadelphia County restraining it from instituting direct bus service from Philadelphia International Airport to center city Philadelphia. SEPTA is an authority formed pursuant to the Metropolitan Transportation Authorities Act of 1963, Act of August 14, 1963, P. L. 984, 66 P.S. §2001 et seq. — 575 — Its constituent members are the City of Philadelphia and the Counties of Bucks, Chester, Delaware and Montgomery. It is charged by the Legislature with the duty of combining, improving, extending and supplementing public transportation systems in the Philadelphia metropolitan area, which systems the Legislature found to be so underdeveloped and obsolete as to have harmed the economic and social health of the area, depreciated property values, reduced tax revenues and generally made the area a less desirable place to live and work. Metropolitan Transportation Authorities Act of 1963, supra, §2, 66 P.S. §2002. SEPTA’S mission, as specifically provided by the Act, is that of planning, acquiring, holding, constructing, improving, maintaining, operating, and otherwise functioning with respect to a transportation system in the metropolitan area. Metropolitan Transportation Act of 1963, supra, Section 4, 66 P.S. §2004(a). SEPTA has broad and inclusive powers to do all that is necessary for the accomplishment of its mission. Philadelphia International Airport, located at the southerly extremity of the City of Philadelphia and extending into portions of Delaware County, is the principal air terminal of the Philadelphia metropolitan area. The Philadelphia metropolitan area was in 1969 and still is the fourth most populous metropolitan area in the United States.1 The Philadelphia International Airport is the only airport of the ten most populated metropolitan areas in the United States which does not have a direct mass transportation facility between its principal airport and city center. The only means of direct transportation between the Philadelphia International Airport and center city are by private automobile, by taxicab, and by limousine service provided by Yellow — 576 — Limousine Service, Inc. (Yellow Limousine), SEPTA’s adversary in this lawsuit.2 In July 1969, SEPTA, believing that transportation in the metropolitan area would be improved by providing direct bus service between the airport and center city, published a tariff under which it proposed to provide a scheduled bus service between the airport and downtown transit centers, seven days a week between the hours of 7:00 in the morning and 9:30 in the evening for a charge of $1.00 one way, with five cents additional to transfer to any intersecting SEPTA route, and less 30 cents for passengers presenting a valid transfer from an intersecting SEPTA route. The buses would run at 30 minute intervals during hours of peak travel and at 45 minute intervals at other times. Each bus would accommodate 49 passengers and their luggage. Yellow Limousine is a public utility certificated, inter alia, to render an airport transfer service throughout the City of Philadelphia and in certain areas of Montgomery and Delaware Counties. Its use of its certificate in the airport transit service consists of the operation of 27 eleven passenger limousines between the airport and several large hotels and motor inns in center city and one large hotel and apartment complex near the intersection of City Line Avenue and the Schuylkill Expressway, some miles from downtown. Its limousines operate from the airport 24 hours a day, seven days a week, but from the doAvntown hotels to the airport only between the hours of 6:00 A.M. to 11:00 P.M., also seven days a Aveek. From the center city hotels to the airport the limousines run on a 30 minute — 577 — schedule; from the airport to center city they are on an irregular schedule, departing when filled, but not less frequently than every 15 minutes. On the trips from the airport to center city the limousines will deviate to accommodate persons desiring to go places other than the designated hotels. The cost of the trip is $1.75. The limousines were described by a representative of Yellow Limousine in these proceedings as “11 passenger airport transport cars, which some people call stretch-outs. What they really are are passenger automobiles which are sent to a firm in the mid-west which breaks them apart and puts in two extra seats and two extra doors, and they are known as stretch-outs or 11 passenger limousines.” Pursuant to Section 4(d)(9) of the Metropolitan Transportation Authorities Act of 1963, supra, 66 P.S. §2004 (d)(9), a hearing on SEPTA’s proposed tariff was conducted by an examiner and later by the SEPTA board. Yellow Limousine appeared in opposition. The examiner recommended the implementation of the tariff and SEPTA’s board passed resolutions adopting its examiner’s recommendation. As provided by Section 4(d) (9), Yellow Limousine appealed the board’s action to the Court of Common Pleas of Philadelphia County which, as previously noted, restrained SEPTA from instituting the proposed service. SEPTA is empowered to use “any public road, street, way, highway, bridge or tunnel for the operation of a transportation system within the metropolitan area.” Metropolitan Transportation Authorities Act of 1963, supra, §4(d)(20), 66 P.S. §2004(d) (20). Section 9 of the Act,3 however, provides: “The authority shall not have the right to use any street or public way presently occupied by a public utility engaged in local passenger transportation, for a compet — 578 — ing purpose, without the agreement of such public utility.” The order below was founded on Section 9. The court defined the phrase “for a competing purpose” as any “comparable service which serves to diminish the revenue-producing ability of the utility” and concluded by a comparison of the facts concerning SEPTA’s proposed service and Yellow Limousine’s existing service, that the two were comparable. We believe that the lower court erred. As we have earlier noted, SEPTA is empowered to operate only a transportation system, defined in the Act as: “. . . all property, real and personal, useful for the transportation of passengers for hire, including but not limited to power plants, substations, terminals, garages, bridges, tunnels, subways, elevated lines, monorails, railroad motive power, trains, railroad passenger cars, and equipment, belt conveyors, inclines, car barns, street cars, buses, rails, lines, poles, wires, stations, off-street parking facilities, rights-of-way, as well as the franchises, rights and licenses therefor, including rights to provide group and party services: Provided, That such term shall not include taxicabs.” Metropolitan Transportation Authorities Act of 1963, supra, §3(a) (8), 66 P.S. §2003(a) (8). The transportation of passengers by automobile is not included within that definition and taxicabs are specifically excluded. Since SEPTA may not, therefore, transport passengers by automobile, it follows that the Legislature could not have intended by Section 9 to protect utilities engaged in that activity. Section 9 does protect from SEPTA competition those public utilities which require protection, that is, those engaged in the activity SEPTA is authorized to follow, the operation of a transportation system. These included, of course, PTC and the Philadelphia Suburban Transportation Company, both of which were acquired by purchase. Since Yellow Limousine operates limousines, or as its representative de — 579 — scribed them, “passenger automobiles with two extra seats and two extra doors,” it does not occupy the city streets with a transportation system. The absurdity of a contrary conclusion is that it would allow Yellow Limousine and its affiliate, Yellow Cab Service, Inc., both of which have authority to operate throughout the city and the latter of which does so operate, successfully to protest an extension of SEPTA’s bus, elevated or subway lines anywhere in the city. Assuming, however, that Section 9 was intended to protect the appellee’s operation of a limousine service, it is only applicable if SEPTA’s purpose is to compete. The primary, and we believe usual, meaning of the word compete is “to seek or strive for something for which others are also contending.” Webster’s Third New International Dictionary, 1966. The lower court employed the secondary meaning of the adjectival form, “competing,” as something which is comparable; and concluded that since the two services had some similar characteristics, SEPTA’s proposal fell within the interdiction of Section 9. Of course, any transportation service from the airport to center city which SEPTA may provide, including the suggested and much desired high-speed train line, would be comparable to Yellow Limousine’s activities in that it would provide passenger transportation between the same general locations. We believe that Section 9 was not intended to prohibit SEPTA activities similar to existing services in that broad sense, but only such as are designed and meant to take an existing utilities’ patrons. The SEPTA proposal is clearly directed to persons who presently use its buses or private automobiles to reach the airport, not Yellow Limousine’s hotel clientele. In any case, to compete with Yellow Limousine would require on SEPTA’s part the provision of equipment and services much more like Yellow’s hotel-door-to-airport, 11 passenger limousine ride for $1.75, than the proposed $1.00, — 580 — 49 passenger bus trip from railway stations, bus terminals and street corners in center city. Finally, the lower court labored under several misapprehensions of fact which may have influenced its conclusions, the most serious of which was that Yellow Limousine’s vehicles were capable of carrying 20 passengers, an unlikely number to be transported in a vehicle smaller than a bus. Order reversed. Footnotes [1] World Almanac 1969, Newspaper Enterprise Association, Inc., publisher. [2] SEPTA has three bus routes which have stops at the airport. Two of these terminate at a subway station about 2 and 5/8’s miles from center city and the third terminates in West Philadelphia, about 45 blocks from center city. [3] 66 P.S. §2009.