185 Pa. Super. 487 | Pa. Super. Ct. | 1958
Lead Opinion
Opinion by
On May 15, 1956, Bob Young Trucking, Inc., a certificated common carrier, applied to the Pennsylvania Public Utility Commission for an amendment to its existing certificate seeking authority “to transport as a Class D carrier all types and forms of steel and metal articles from the City of Bethlehem to points in Pennsylvania”. Protests were filed by a number of other certificated common carriers. After taking extensive testimony at hearings on June 25, September 4 and 5, and October 15, 1956, the Commission, by short form order dated April 15, 1957, amended the applicant’s certificate to include the following authority: “To transport, as a Class D carrier, fabricated or structural iron and steel articles, requiring the use of specially constructed vehicles such as pole trailers, flatbed trailers or low-side trailers, from the City of Bethlehem, Northampton and Lehigh Counties, to points in Pennsylvania, excluding the transportation of manufactured iron and steel articles for Bethlehem Steel Company to the City of Johnstown, the Boroughs of Franklin and Conemaugh and the Township of West Taylor, Cambria County”. Seven of the protestants appealed. Upon the Commission’s petition, we remitted the record for the preparation of a long form order.
Briefly stated, the contentions advanced by appellants are (1) that the applicant failed to prove need for the proposed service or inadequacy of the existing service; (2) that the applicant is unfit to be granted additional authority. In limine, it should be noted that the applicant operates in a highly specialized field. Its equipment is designed to handle large, lengthy and unwieldy shapes and structures of iron and steel. A complete repair and maintenance shop services this equipment and also designs and constructs pole trailers of a size and capacity to haul extremely large pieces. The driver-personnel is specially trained to handle the transportation of bulky and cumbersome fabricated and structural articles. Applicant’s existing rights are set forth in the footnote.
The scope of our review in cases of this kind is to determine whether there is error of law or lack of evidence to support the finding, determination, and order of the Commission: Lyons Transportation Co. v. Pa. P. U. C., 163 Pa. Superior Ct. 335, 61 A. 2d 362. See
The primary object of the public service laws is not to establish a monopoly or to guarantee the security of investment in public service corporations, but first and at all times to serve the interests of the public: Sayre v. Pa. P. U. C., supra, 161 Pa. Superior Ct. 182,
What may constitute public need for the services of a motor carrier depends upon the locality involved and the particular circumstances of each case: Noerr Motor Freight, Inc. v. Pa. P. U. C., 181 Pa. Superior Ct. 322, 124 A. 2d 393. See also Modern Transfer Co. v. Pa. P. U. C., supra, 182 Pa. Superior Ct. 110, 125 A. 2d 463. In this connection Ave have been particularly impressed by that portion of the argument in applicant’s brief which is set forth in the footnote.
Supporting the application were representatives of the following shippers: Luria Steel Supply Company, Bethlehem Iron Works, Posh Construction Company, Bethlehem Contracting Company, Luria Engineering Company, and Bethlehem Fence Works. In substance, they all agreed upon the need for fast service by a carrier providing specialized service and expert handling, and having a terminal located in Bethlehem. They all requested that the applicant should be granted the additional authority sought, and indicated that the service provided by protestants, if not entirely inadequate, was certainly not as satisfactory. It should be noted that their complaints as to inadequacy do not relate to the transportation of relatively small items which can be hauled in van type trailers or straight trucks, but to the transportation of large structural pieces and long lengths of steel and fabricated items on pole trailers, flat-bed and low-side trailers, particularly where delivery is to be made to the job site.
The protestants did not call a single public or shipper witness, but confined their testimony to that of their own representatives whose position in substance was that they should be allowed to provide the service and be protected from competition. With the exception of Bast, the appellants are line-haul carriers of general commodities. While some of them own flat
We come now to appellants’ second contention. Robert D. Young, the owner of all except one share of applicant’s stock, freely admitted that he had exceeded his certificated authority in certain prior operations, and that he had been fined by the Commission on at least two occasions for violating his existing rights. Some of this illegal hauling was during a time of emergency due to floods. Some of it related to installations for the armed services. When informed of its limited rights, the applicant entered into a lease agreement for equipment to be operated by one of the large shippers in Bethlehem by men on its payroll, and promptly applied for more extensive rights. The Commission was satisfied that the applicant was operating under a bona fide misunderstanding as to the extent of its authority.
Young was vigorously cross-examined on the matter of misunderstanding, including prior unauthorized operation, by several of the able counsel for protestants. His testimony remained unshaken and unimpeached.
In Lancaster Transportation Co. v. Pa. P. U. C., 181 Pa. Superior Ct. 129, 124 A. 2d 380, President Judge Rhodes said: “The mere fact of prior operation without commission approval is not per se equivalent to an offense which will prohibit absolutely the acquisition of proper authority when application is subsequently made. The distinction between those violations which are prohibitive and those which will be accepted as competent evidence is, to a large degree, dependent upon the issue of good faith. If the violation is the result of a bona fide misunderstanding of the service authorized by the commission, there is no substantial basis, either legally or morally, to object to its use in a certification proceeding . . .” In its order in the case at bar, the Commission made the following pertinent observation: “It should be stated at the outset that it is clear from the record that the applicant has, in fact, been providing service for which authority is here sought. The applicant testified that he purchased his present rights to haul iron and steel articles from one Szilagyi in 1951 and was then informed that he could haul for anyone in Bethlehem whereas the rights were actually restricted to Bethlehem Steel. He believed that his certificate read ‘Bethlehem Steel
The question whether prior violations are excusable is primarily a matter for the Commission: Arrow Carrier Corp. v. P. S. C., 120 Pa. Superior Ct. 570, 182 A. 711. It is for the Commission to determine whether prior violations have rendered the applicant unfit: Highway Express Lines v. Pa. P. U. C., 161 Pa. Superior Ct. 98, 54 A. 2d 109. The instant factual situation is somewhat similar to that in Daily Motor Express v. Pa. P. U. C., supra, 183 Pa. Superior Ct. 120, 130 A. 2d 234, wherein we noted that a denial of the application “. . . would not preserve the status quo concerning service presently available to the public. On the contrary, it would eliminate service heretofore rendered which had proved eminently satisfactory, albeit unauthorized . . .”. We therein held that approval of the application in question would “. . . permit the continuance of a public service of which these shippers have availed themselves and of which they stand in need”. See also Cage v. P. S. C., 125 Pa. Superior Ct. 330, 189 A. 896, wherein an order of the Commission refusing to grant additional authority was reversed. In the Cage case Judge (now President Judge) Rhodes stated: “We do not see how these prior violations could then properly be a determining factor in refusing additional rights. If the additional rights are necessary, and a continuation of the restriction in the certificate would be unfair and injurious to the appellants and
In view of the finding of good faith, see Pennsylvania Railroad Co. v. Pa. P. U. C., 182 Pa. Superior Ct. 54, 125 A. 2d 624, the Commission was warranted in concluding that the applicant was a fit carrier to be granted the additional authority requested. It should perhaps be noted, as pointed out in the Commission’s brief, that if the applicant had been found unfit to have the additional rights, it Avould also be unfit to hold any rights at all. Since the findings of the Commission were supported by substantial evidence with rational probative force, they should not be disturbed: Hutchison v. Pa. P. U. C., 168 Pa. Superior Ct. 319, 77 A. 2d 744.
Order affirmed.
To transport as a Class D carrier, iron and steel articles for the Bethlehem Contracting Company in the City of Bethlehem to points within 50 miles by the usually traveled highways of the limits of said city; transport as a Class D carrier, building blocks and cement aggregates such as brick, slabs, pipe, posts, and other cement products from points in the City of Bethlehem, Northampton County, to points within 75 miles by the usually traveled highways of the limits of said city; to transport as a Class D carrier bricks from points in the Boroughs of Quakertown, Bucks County, and Nazareth, Northampton County, to points within 75 miles by the usually traveled highways of the limits of the said boroughs. To transport as a Class D carrier, building construction materials, such as are usually transported in dump trucks, between points not to exceed a distance of twenty-five miles from point of origin to point of destination in the Counties of Lehigh, Northampton, Bucks, Berks, Carbon, Monroe, Pike, Montgomery, and Schuylkill; to transport as a Class D carrier shovels, contractors’ equipment, between points in the Counties of Lehigh, Northampton, Bucks,
“In this era of an expanding economy with its attendant increase in construction of all types, particular emphasis must be given to the needs and demands of the public upon the steel industry and allied producers and processors of iron and steel.
“The demand for fabricated and structural iron and steel articles during the recent years frequently outran the production and processing of such material. Highway programs, State and Federal, are consuming vast quantities of iron and steel for roads and bridges. Hospitals, schools, new mental institutions, homes for the aged, and similar institutions are the order of the day and demand more iron and steel. Industry is on the move from urban centers to adjacent rural sites and more iron and steel is needed.
“The rapid expansion of construction in industrial, institutional and public fields has not only taxed the ingenuity of the producers and manufacturers of steel and steel and iron structural articles but has caused the development of transportation specialists, who maintain and operate equipment designed to haul the large and unwieldy shapes needed for this construction.
“Structural and fabricated iron and steel articles are most treacherous to haul. They develop an almost perverse nature and will whip like a fishing rod or slide like an avalanche unless loaded and transported by men who, by experience, study and constant practice, have become specialists in the field upon equipment appropriate for such hauling.
“The trend among fabricators and processors of steel and iron is to design, fabricate and assemble in the plants and ship in large units. This calls for specially constructed equipment and unique ‘know how’ to operate this equipment safely over the highways.
“There is an increasing tendency of industry to leave the crowded urban areas and locate plants in rural sections, away from railroad facilities. It is common knowledge that institutions generally are erected and located in relatively remote locations. These facts demand that carriers be able to make job site deliveries.
“The extreme high cost of the large and intricate machinery needed to erect steel and structural shapes and the high wages paid to the men who operate such machines, make it essential that deliveries of construction material be made on a given schedule. Delays, occasioned either by inadequate motor equipment, or the unavailability of specialized motor haulers, are expensive. If struc
Dissenting Opinion
Dissenting Opinion by
I am obliged to file this dissent to the majority opinion notwithstanding its alluring appeal.
The grant of additional authority to the applicant on this record was, in my opinion, a manifest abuse of discretion on the part of the commission; and it is an abuse of judicial authority to affirm the commission’s order. It reAvards an applicant which has repeatedly and willfully violated the laAV, and Avhich in fact openly defies any laAvful regulation.
This Court should not give its approval to the grant of additional benefits to one so obviously unfit to have them.
Robert D. Young, president of the applicant company and holder of all of its • stock except one share,
I recognize that the fitness of an applicant is a matter primarily for the commission. Arrow Carrier
Our statement in Lancaster Transportation Company v. Pennsylvania Public Utility Commission, 181 Pa. Superior Ct. 129, 138, 139, 124 A. 2d 380, 385, is directly applicable: “On the other hand, where the violation is one resulting from a deliberate disregard of the certificate limitations or the law, then, of course, the wrongdoer should not profit from his own deliberate wrong.” The case of Cage v. Public Service Commission, 125 Pa. Superior Ct. 330, 336, 337, 189 A. 896, quoted by the majority, does not support its conclusion. In that case there was no open, willful,
On this unprecedented record applicant should not be granted a substantial extension of its rights.
The witness Young testified: “Q. However, at the time you signed that application, you were engaging and you still are engaging in the transportation for which you have been . . . [prosecuted] three times, isn’t that right? A. Right.”
Applicant also attempted to avoid the limits of its certificate by “leasing” its equipment to the shippers. This was an obvious subterfuge and cannot remove the taint of illegality.
Commissioners Houck ancl Sharfsin voted to deny the application.