201 Pa. Super. 196 | Pa. Super. Ct. | 1963
Opinion by
This is an appeal from an order of the Pennsylvania Public Utility Commission dated August 27, 1962, granting new rights to three railroad motor carrier subsidiaries and enlarging existing rights of two inde
The essence of this appeal is whether the commission erred in determining that additional motor carriers were necessary to satisfy the recently developed need for motor transportation of cement products of the eastern Pennsylvania cement producers. This appeal is not an unexpected sequel to our decision in the Chemical case, supra.
Thereafter, on April 23, 1962, the commission, upon our remand, granted the rights applied for to Chemical Tank Lines, Inc., Top Transport, Inc., E. Brooke Matlack, Inc., Modern Transfer Company, Inc., and Schwerman Company of Pennsylvania, Inc., (appellants in the Chemical case, supra, 193 Pa. Superior Ct. 607, 165 A. 2d 668), as well as to Cement Express, Inc., which fell into the same class as an industry sponsored carrier, but which had not appealed from the order of April 4, 1960. See Application of Cement Express, Inc., 39 Pa. P.U.C. 684. In granting such rights the commission specifically stated that such authority was the minimum required under our remand, and it recognized that it had pending before it the application of the three rail subsidiary motor carriers and the applications of Gabler and Coastal for enlargement of their
Four months later, on August 27, 1962, the commission issued the present order granting cement transportation rights to the three railroad subsidiary motor carriers and granting enlargement of the previously granted rights of Gabler and Coastal. This appeal followed and was taken by three of the six cement industry sponsored carriers who had been granted cement transportation rights by the order of April 23, 1962.
The commission’s approach to the order of August 27, 1962, here involved, amounted basically to a consideration of the extent of motor carrier service sufficient to satisfy the recently developed need for motor transportation of cement which it had filled in part by its order of April 23, 1962, granting rights to the present appellants and others — in short, a determination of the extent of competition necessary in the newly developed eastern Pennsylvania cement transportation area. Other considerations also entered into the commission’s order. The appellants contend that the need for motor transportation of cement was wholly filled by the appellants and three other carriers supported by the cement industry who were granted rights just four months previously, and that such service had to be proved inadequate in the usual manner before any further carriers were authorized to compete.
In all motor transport applications for initial or additional authority, the basic proof must center about the need for the proposed service and the inadequacy of the existing service, if any. Where the need, as here, is one which is newly developed, the inadequacy gen
The evidence of record shows that the requirements, desires, and convenience of the consumers are part of the general public interest as distinguished from the requirements, desires, and convenience of the industry, both of which, however, are segments of the general newly developed need for motor transportation of cement from the eastern Pennsylvania producing area. The testimony indicates this definite consumer convenience which the commission recognized. Testimony produced by two of the rail subsidiaries was in the form of consumer requests, desires, and preferences for service by the motor carriers associated with the railroads with whom they have had satisfactory relationships in the past. We note that the authority requested
The evidence produced by the intervening appellees Gabler and Coastal also sufficiently demonstrated the consuming public’s phase of this recent need for motor transportation of cement. Gabler and Coastal, it will be noted, were among the three carriers who received limited transportation rights for cement in 1959 upon their earlier applications in 1956. We determined in the prior appeal that their authority was too limited to satisfy the need. Consequently, after our decision, Gabler and Coastal filed the applications to broaden their transportation rights so as to remove the limitations which created the inadequacy. Typical of the testimony on behalf of Gabler and Coastal was that produced by J. Robert Bazley, Inc., Pottsville, Pennsylvania, a contracting company engaged in heavy construction work throughout the State of Pennsylvania. This company uses from 150,000 to 200,000 barrels of bulk cement plus bag cement in smaller quantities. Bazley indicated that rail sidings are not always available at or near the job sites; that the company desired to purchase its cement f.o.b. the plant, and name the carrier to perform the transportation so as to give it a better control of the material at the time it is needed at the job. The shipment by a carrier not selected by or known to Bazley, the consumer, deprives it of proper
The testimony of the consumers in the nature of their requests for service was competent evidence indicating the reasonable necessity for the service proposed. The testimony of such witnesses in fact complements and corroborates the over-all public need shown on the record in the prior appeal. The commission properly observed that . . [consignee] witness after consignee witness testified that certification of Coastal and of other applicants in these proceedings would result in more flexible and more convenient service and would, above all, afford to the consignee a measure of selection and control over the transportation service for which he is required to pay.”
The inadequacy of existing service is as apparent as the need. In all of the applications, including that of Gabler and Coastal which were not filed until after our decision in the prior appeal, the inadequacy existed because rail service was insufficient, and the only other motor transportation, that of the three limited right carriers, was too restricted to satisfy the broad and general need for cement motor carrier service. The mere fact that the commission handed down the order in the case of the present appellants a short time prior to issuing its order in the present case cannot be taken to indicate that the present appellants thus render the only existing adequate or necessary service. We cannot stress too greatly the fact that this was a newly developed need. The existence of appellants as available carriers only recently certified did not necessarily re
In view of the need which developed, the decision to be made was the extent to which this need should be filled by the various conflicting applicants. Under such circumstances it was not improper for the commission to inject an element of competition into this fledgling field of transportation. Coastal Tank Lines, Inc., v. Pennsylvania Public Utility Commission, 189 Pa. Superior Ct. 482, 489, 151 A. 2d 846. The object of these proceedings was not to establish a practical monopoly on behalf of the industry sponsored carriers. The primary consideration is to serve the general public interest, and the extent of competition was basically a matter within the administrative discretion of the commission. Sayre v. Pennsylvania Public Utility Commission, 161 Pa. Superior Ct. 182, 184, 54 A. 2d 95; New Kensington City Lines, Inc., v. Pennsylvania Public Utility Commission, supra, 200 Pa. Superior Ct. 490, 190 A. 2d 179. The allocation of service to the various cement industries between the appellant carriers and the other industry sponsored carriers, while not an unlawful circumstance, was a matter to be considered in finding that the injection of competition sponsored by consumers will further the public interest and tend to eliminate any trend toward monopolistic practice. Ruettger v. Pennsylvania Public Utility Commission, 164 Pa. Superior Ct. 388, 393, 64 A. 2d 675; Chemical Tank Lines, Inc., v. Pennsylvania Public Utility Commission, supra, 193 Pa. Superior Ct. 607, 626, 165 A. 2d 668. See, also, Federal Trade Commission v. Cement Institute, 333 U. S. 683, 68 S. Ct. 793, 92 L. Ed. 1010.
The appellants argue that the declaration of policy contained in section 801 of the Public Utility Law prohibits an “unrestricted” grant of motor carrier authority to a railroad or rail affiliate under the circumstances of the present proceeding. Section 801, 66 PS §1301, provides in part: “It is hereby declared to be the policy of the Legislature to regulate in this act the service of common carriers by motor vehicle and forwarders in such manner as to recognize and preserve the inherent advantages of, and foster sound economic conditions in such service, and among such carriers and forwarders in the public interest; . . . [and] to improve the relations between, and coordinate the service and regulation of, common carriers by motor vehicle, forwarders, and other carriers; . . .” We find nothing of the restrictive nature in the declaration of policy which the appellants contend exists. The policy and decisions of the Interstate Commerce Commission relied upon by appellants are wholly inapplicable primarily because the Interstate Commerce Act, which includes language similar to the Declaration of Policy in the Pennsylvania Public Utility Law, contains additional specific restrictions regarding motor carrier service by railroads which are significantly absent from the Pennsylvania Act. 49 U.S.C.A. §5(2) (b). Permitting rail subsidiaries to engage in motor transportation is not foreclosed by the spirit or the letter of our Public Utility Law, nor is it necessarily detrimental to preservation of the inherent advantages of motor transportation. In fact, with proper commission limitation it should improve relations between both types of carriers consistent with the declared policy, and co-ordinate the service and regulation thereof.
The appellants contend that the commission’s finding of a public need for the service of Black Diamond
In the prior appeal the appellants argued and established that the industry-wide need, as well as the particular needs of the industry, existed because of the change in market conditions. They cannot argue in the present appeal that such need did not exist because the times in issue are the same; they have therefore admitted the existence of the need. See Zank v. West Penn Power Company, 169 Pa. Superior Ct. 164, 166, 82 A. 2d 554.
The order of the commission is affirmed.
The rights granted by the commission’s order of August 27, 3 962, are as follows:
(a) Black Diamond Transport Company. A. 86381, Folder 2 —
“To transport, as a Class D carrier, bulk cement in tank-type or hopper-type vehicles and cement in bags and packages or other containers from points in the Townships of Whitehall and North Whitehall, Lehigh County, and the Borough of Stockertown, Northampton County, to points in Pennsylvania; and the return of rejected shipments, empty containers or such other incidental facilities used in transporting cement.”
(b) Pennsylvania Truck Lines, Inc. A. 24371, Folders 179-180-181—
“To transport, as a Class D carrier, Portland, hydraulic and masonry cement, in bulk in tank-type or hopper-type vehicles, and such cement in bags, packages or other containers from the plant of Medusa Portland Cement Company in the Township of West Manchester, York County, to points in Pennsylvania; and the return of empty containers and other incidental facilities used in the transportation of cement.
“To transport, as a Class D carrier, Portland, hydraulic and masonry cement, in bulk in tank-type or hopper-type vehicles, and such cement in bags, packages or other containers, from the plant of Alpha Portland Cement Company in the village of Martins Creek, Northampton County, to points in Pennsylvania; and the return of empty containers and other incidental facilities used in the transportation of cement.
“To transport, as a Class D carrier, Portland, hydraulic and masonry cement, in bulk in tank-type or hopper-type vehicles, and such cement in bags, packages or other containers from the plant of Allentown Portland Cement Company in the Borough of West Conshohocken and the Township of Upper Merion, Montgomery County, to points in Pennsylvania; and the return of empty and other incidental facilities used in the transportation of cement.”
(c) Reading Dispatch, Inc. A. 86582, Folder 2—
“To transport, as a Class D carrier, cement in bulk in tank-type or hopper-type vehicles or containers and cement in bags, packages or other containers from points in the Township of Maidenereek, Berks County, the Borough of West Conshohocken and the Township of Upper Merion, Montgomery County, the Borough of Coplay and the Townships of Upper Macungie, Whitehall*201 and North Whitehall, Lehigh County, to points in Pennsylvania; and empty containers and such other facilities used in the transportation of cement, from points in Pennsylvania to points in the aforementioned boroughs and townships.”
(d) Coastal Tank Lines, Inc. A. 60226, Folder 3, amended to read as follows:
“To transport, as a Class D carrier, cement in bulk in tank-type or hopper-type vehicles and in bags or containers between points in the Counties of Lehigh, Northampton, Berks, Montgomery, and York and from points in the said counties to points in Pennsylvania; and the return of refused or rejected merchandise and empty containers and such other facilities used in the transportation of cement to the point of origin.”
(e) Harold C. Gabler. A. 37908, Folder 5, amended to read as follows:
“To transport, as a Class D carrier, cement in bags and cement in bulk in tank-type or hopper-type vehicles from points in the Counties of Berks, Lehigh, Northampton, and York to points in Pennsylvania; and the return of empty containers and refused or rejected shipments.”
We have disposed of three appeals under the number given. However, it would have been better to have appeal numbers for which filing fees were paid. But, see Rule 9 of the Rules of the Superior Court.
Intervening appellee Coastal Tank Lines, Inc., was granted, inter alia, the right to transport cement for A. G. and W. H. Corson, Inc., from its new plant in Whitemarsh Township, Montgomery County. Appellants do not question the grant of this portion of the authority to Coastal.
Appellants do not specifically raise a question of the fitness of intervening appellees to render the service.