183 Pa. Super. 120 | Pa. Super. Ct. | 1957
Opinion by
We are here concerned with appeals from two orders of the Pennsylvania Public Utility Commission. The first grants additional authority to Central Storage and Transfer Company of Harrisburg (hereinafter called Central) in an application proceeding docketed at A.82019, Folder 2, Amendment A. The second disposes of complaints filed against Central docketed at C.16540, 16541, and 16557. The cases are inter-related and the appeals were consolidated for the purposes of brief, argument, and disposition. On October 4, 1956, we denied petitions for supersedeas.
Central has been engaged in the transportation business since 1920. It was originally operated as an individual proprietorship, subsequently became a family partnership, and was organized as a corporation in 1955. Under date of May 31, 1955, its then existing rights were set forth at docket 82019, folder 2, and may be summarized as follows:
2. Class C authority to transport property from Harrisburg to points in Pennsylvania within 100 miles of the limits of Harrisburg, limited and restricted to perishables and household furniture, provided that other property may be transported if the property of not more than two shippers or two consignees is carried on any one trip.
3. Class A authority over Harrisburg-York route, limited and restricted to the transportation of property from Harrisburg or York to Harrisburg or York, or to intermediate points, subject to the additional proviso that nothing may be transported from York to points between York and Columbia.
4. Class A authority over Harrisburg-Lancaster route, limited and restricted to transportation from Harrisburg, Lancaster or Florin to Harrisburg, Lancaster or Florin, or to intermediate points, subject to the additional proviso that nothing may be transported from Lancaster to points between Lancaster and Elizabethtown.
5. Class D property rights for General Foods Corporation from Camp Hill to points on the above routes and vice versa.-
Because of questions which had been raised concerning the legality of certain of its operations, Central made application on August 2,1955 for amendment of its certificate alleging the following reasons: (1) to follow industry from applicant’s present certificated area to new plant locations; (2) to serve more effectively the growing metropolitan area of Harrisburg; (3) to remove any ambiguity from the operations currently being performed by applicant under its existing rights. Protests were filed by the several appellants
1. It enlarged the Class B area from Harrisburg to the area within five miles of Harrisburg.
2. It enlarged the Class C area from the City of Harrisburg to the area within five miles of Harrisburg.
3. It permitted the pick-up of freight at all intermediate points on the Harrisburg-York Class A route.
4. It permitted the pick-up of freight at all intermediate points on the Harrisburg-Lancaster Class A route.
5. It authorized the combination of the Harrisburg-York Class A route and the Harrisburg-Lancaster Class A route.
6. To the extent that the Class A routes were broadened, it broadened the vice versa portion of the Class D authority.
Following the taking of appeals, the record was remitted to the Commission and a “long form” order was issued on October 22, 1956. Based upon certain testimony in the application proceeding, complaints were filed by Motor Freight Express, Inc., Hall’s Motor Transit Co., and Keystone Express and Storage Go.j
In these appeals three questions are raised. Appellants contend (1) that there was not substantial evidence to support the order; (2) that Central failed to prove the inadequacy of existing services; and (3) that the Commission ignored Central’s illegal operations and refused to invoke penalties. In passing upon these questions we must bear in mind that the extent to which there shall be competition in intra-state transportation is largely a matter of policy which the Legislature has committed to the sound judgment and discretion of the Commission: Follmer Trucking Co. v. Pa. P. U. C., 171 Pa. Superior Ct. 75, 90 A. 2d 294.
Our function was thus stated by Judge Hirt in Pennsylvania Railroad Co. v. Pa. P. U. C., 181 Pa. Superior Ct. 343, 124 A. 2d 685: “The scope of our review in cases of this kind is definitely limited. The order of the Commission may not be set aside by us except for error of law or lack of evidence to support it; no constitutional question is involved. The burden on an applicant to establish need for proposed service is met by showing that it is reasonably necessary for the accommodation or convenience of the public . . . The question of reasonable necessity for the service, before the Commission, was purely administrative; we therefore may not exercise an independent judgment on appeal from a determination of that question and sit as a ‘super-administrative’ board: Pittsburgh & Lake Erie R. R. Co. v. Pa. P. U. C., 170 Pa. Superior Ct. 411, 85 A. 2d 646”.
In our most recent consideration of the subject Judge Gunther made the following pertinent analysis:
In seeking to combine rights under existing certificates, together with additional authority, the burden of proof is upon the applicant to establish (1) the need for the additional and proposed service, and (2) the inadequacy of existing service: Modern Transfer Co. v. Pa. P. U. C., 179 Pa. Superior Ct. 46, 115 A. 2d 887. However, no particular type of evidence is required if the evidence as a whole is legally sufficient to support the order. Appellant’s burden is proof “is met by showing that the proposed service is reasonably necessary for the accommodation or convenience of the public, or by establishing that existing service does not satisfy the public need and that the proposed service would tend to correct or substantially improve that condition . . . Absolute necessity for the additional service is not a requisite, and it is not necessary that applicant establish a present demand for the service in every square mile of the territory certificated; proof of necessity within the area generally is sufficient”: Zureher v. Pa. P. U. C., 173 Pa. Superior Ct. 343, 98 A. 2d 218. The fact that there are other certificated carriers equipped to render the same service in the territory does not necessarily require the refusal of the application: Benkart & Sons Co. v. Pa. P. U. C., 137 Pa. Superior
Appellants do not question Central’s capacity to perform the service. While it is not a large carrier comparatively speaking, there was testimony that “There is definitely a great advantage to the shipping public with a smaller carrier”. Central presently operates terminals at Harrisburg, Lancaster, and York. Thirty-eight employes work out of Harrisburg, eight out of Lancaster and four out of York. Its equipment consists of 54 vehicles, all properly insured pursuant to the regulations of the Commission. The financial condition of the corporation was found by the Commission to be satisfactory. In addition to the authority covered by the certificate dated May 31, 1955, Central is authorized to and does exchange shipments with other carriers, including Keystone Express and Storage Company, Inc., Horn’s Motor Express, Inc., Daily Motor Express, Inc., and Jones Motor Company.
No useful purpose would be served by burdening our opinion with a recital of the testimony of the several witnesses. This was done with considerable detail in the Commission’s order. With regard to the enlargement of the Class B and C rights to include points within a five mile radius of Harrisburg, Central pro-' duced witnesses to show that industrial plants and warehouses had within the past few years moved from the City of Harrisburg to points outside the City. In each instance the witness stated that his company wished to continue to make use of Central’s service. Shipper witnesses also testified as to the need for service to and from intermediate points on Central’s Class A routes. The evidence discloses that the rights applied for would implement Central’s existing authority so as to provide for a more practical and economic
Testimony was also adduced concerning the inadequacy of the service of existing certificated carriers. The Commission found that “From such testimony it can be seen that these witnesses who testified to the availability of service by other carriers were clearly dissatisfied with the kind of service rendered and were clearly of the opinion that such service as existed was inadequate for their needs”. The record discloses that shipper witness expressed dissatisfaction with the service rendered by several of the appellants. This testimony took the form of complaints as to the nature of the service rather than proof that the service was not available. We have recognized the probative value of
Appellant’s strenuously contend that Central’s past operations were illegal and without justification, and that evidence as to such service should not have been received or considered by the Commission. In Lancaster Transportation Co. v. Pa. P. U. C., 181 Pa. Superior Ct. 129, 124 A. 2d 380, speaking through President Judge Rhodes we 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 existence 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 . . . 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”.
We are here confronted with a somewhat unusual situation in that a denial of Central’s 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. ' In fact, it was conceded by witnesses for appellants that granting the application would not add to the competition already existing. In this connection the Commission states: “Therefore, denial of the application would deprive the public of a service, the need of which has been demonstrated by consistent public use. The very fact of the impressive and substantial recent investments which the protestants have made in equipment and fa: cilities negatives any suggestion that applicant’s activities have had a serious competitive effect upon them”.
In conclusion, we have carefully reviewed the voluminous record and do not find errors of law, violation of constitutional rights, or lack of evidence to support the finding, determination, and orders of the Commission. It is our view that the evidence is sufficient, both as to quantity and quality, to justify the Commission’s disposition of the complaint proceeding and its grant of additional authority. Approval of Central’s application will not only accommodate many shippers along its routes, but will also permit the continuance of a public service of which these shippers have availed themselves and of which they stand in need. See Lancaster Transportation Co. v. Pa. P. U. C., supra, 181 Pa. Superior Ct. 129, 124 A. 2d 380.
Orders affirmed.
Act of May 28, 1937, P. L. 1053, 66 PS 1101 et seq.
It should be noted that Rule 202 is not operative merely as a matter of policy or unlimited discretion. The findings and order of the Commission must have a substantial basis in the evidence: Noerr Motor Freight, Inc. v. Pa. P. U. C., supra, 181 Pa. Superior Ct. 322, 124 A. 2d 393.
