215 Pa. Super. 304 | Pa. Super. Ct. | 1969
Dissenting Opinion
Dissenting Opinion bt
I respectfully dissent. The Certificate of Public Convenience, under which the transfer of the rights of Charles H. Forney to D. R. Whitmer Sons was approved by the Public Utility Commission in this case, had been held by Forney since 1961. Under it Forney was authorized as a common carrier to transport building supplies, building materials, sand, gravel and coal in central Pennsylvania. However, Forney testified that he had transported only coal under the Certificate from 1961 to 1965 and had transported nothing thereafter. There being no further evidence in the record that there was a public need for these services, the presumption of continuance doctrine, as established in Hostetter v. Pennsylvania Public Utility Commission, 160 Pa. Superior Ct. 94, 49 A. 2d 862 (1946), should
The evidence of abandonment is even more apparent in this case than in W. D. Rubright Co. v. Pennsylvania Public Utility Commission, 197 Pa. Superior Ct. 242, 177 A. 2d 119 (1962), in which I dissented on the same grounds. In that case the transferor signed an agreement of transfer one month after he ceased operations, where in this case the transferor conducted no operations for three years prior to the application.
Therefore, I believe that since there was no evidence to support the Commission’s orders, they should be reversed.
Lead Opinion
Opinion
Orders affirmed.