Renehan v. Public Service Commission

Brune, C. J., delivered the opinion of the Court. The question here at issue is the timeliness of an appeal from an order of the Public Service Commission to a Circuit Court. The right to judicial review by a trial court of a final order of the Commission is conferred by § 90 of Art. 78 of the Code (1957). Its exercise was regulated in 1961, when the appeal here involved was taken, by Maryland Rule 1101, secs. a-1.

(Rule 1101 was recodified, effective January 1, 1962, as Rules B1-B12 of Chapter 1100; the recodification involves no change here material. We shall refer to the pertinent Rules by their 1961 designations.) The Circuit Court for Carroll County held the appeal not timely and accordingly dismissed it. The appeal from the order of dismissal is based upon § 98 of Art. 78, supra. On this appeal the appellants challenge the dismissal of their appeal only with regard to the Commission’s Order No. 54770, entered on October 11, 1961.

(Their petition or order for appeal as filed in the Circuit Court also sought review of two earlier orders of the Commission (Nos. 54546 and 54722), but their brief in this Court does not challenge the dismissal as to those orders.) The case grows out of a new tariff affecting telephones in the Sykesville area submitted by one of the appellees, the Chesapeake & Potomac Telephone Company of Maryland, to the other appellee, the Commission. The appellants filed a complaint with the Commission on January 30, 1960, opposing the new tariff, which contemplated splitting the Sykesville area between two new telephone exchanges. Various hearings were held and other proceedings were had, which we see no need to set forth. On August 2, 1961, the Commission entered its Order No. 54722 dismissing the appellants’ complaint.

On September 5, 1961, ⁶² the appellants filed a request for rehearing. This was denied by the Commission’s Order No. 54770, which was entered on October 11, 1961. On the same day a copy of this order was mailed to counsel for the appellants by the Executive Secretary of the Commission. Apparently on Friday, November 10, 1961, counsel for the appellants mailed a “petition,” which constituted their order for appeal from the Order of October 11, 1961, to the Clerk of the Circuit Court for Carroll County.

Appended to this appeal was a certificate of counsel that he had “sent” (we understand by mail) a copy thereof to two members of the Commission and to counsel for the Telephone Company. A copy was received by the Commission on Monday, November 13th, and the original petition was received by the Clerk of the Circuit Court by mail early on the morning of Tuesday, November 14th, 1961. The Telephone Company moved to dismiss the appeal as filed too late. Rule 1101 applied by Sec. a thereof to appeals from administrative agencies generally by broad language which comprehends appeals from the Public Service Commission.

See Aberle v. Baltimore City, 228 Md. 542 , 180 A. 2d 836 , involving an appeal from a zoning agency. The reasoning of that case is applicable to this as to the scope of the Rules relating to appeals from administrative agencies. Rule 1101 b 1 required the appeal to be filed with the clerk of the proper court, accompanied by a certificate of service on the agency involved. Rule 1101 d reads as follows: “An order for appeal shall be filed within thirty days from the date of the action appealed from, except that where the agency is by law required to send notice of its action to any person, such order for appeal shall be filed within thirty days from the date such notice is sent, or where by law notice of the action of such agency is required to be received by any person, such order for appeal shall be filed within thirty days from the date of the receipt of such notice.” Rule 1101 d 2 permitted the filing of an application for an extension of time for appeal and authorized the court to extend it for not over sixty days, but subsec. 3 of Rule 1101 d required ⁶³ the application for extension to be filed within the time