440 Pa. 521 | Pa. | 1970
Opinion by
These are appeals from two orders of the Superior Court affirming orders of the Public Utility Commission. Two proceedings were brought before the PUC. In one B. R. Whitmer Sons sought to acquire by transfer the certificates of public convenience as a common carrier by motor vehicle issued to Charles Forney. In that action Byerly’s Service, Registered was the protestant. In the other action Byerly’s Service, Registered attempted to have the certificate issued to Forney revoked and cancelled on the ground that operations under the certificate had ceased because of a lack of necessity. The PUC approved the transfer and dismissed the complaint. The Superior Court affirmed, 215 Pa. Superior Ct. 304, 257 A. 2d 922 (1969) (Montgomery, J., filed a dissenting opinion in which Jacobs, J., joined). We granted allocatur.
This proceeding grows out of the proposed sale of a common carrier truck certificate by Charles Forney
The commission found against Byerly in both actions on the theory that Byerly had not sustained its burden of proving that Forney had abandoned its rights. Its opinion states: “This is not a situation where a transferor has abandoned service and sold his equipment. In this case the transferor always had equipment available to provide service and at no time did he put himself into a position whereby he could not render any sendee requested of him by the public. . . . Forney paid annual assessments against him as a public utility and continued to maintain insurance, annual reports, and tariffs on file with this Commission. At no time did he orally or in writing evidence any intention to abandon the rights. All of these circumstances negate any intent on his part to abandon his certificated rights.”
It is necessary for us to restate the principles applicable to transfer cases for it appears that some confusion has developed. Section 202(e) of the Public
The Commission found that Forney did not abandon the rights represented by his certificate. It stated “To
We affirm the orders of the Superior Court, however, because an examination of the record discloses that. Byerly has not met its burden of rebutting the presumption of continuing necessity. On direct examination of.Forney, the following occurred: “Q. Have you at any time since this physical condition developed (approximately 1965) refused to handle any traffic that you were asked to handle? A. I wasn’t asked for any, but I didn’t refuse any.” Byerly bases its argument that it . has met this burden totally on the point that Forney has never transported any building supplies, building materials, sand or gravel and that since 1965 he received no requests to nor did he in fact transport any coal. The fact that a carrier has not transported
As Byerly has not met his burden of overcoming the presumption of continuing necessity, the orders of the Superior Court are affirmed.