177 Pa. Super. 439 | Pa. Super. Ct. | 1955
Opinion by
These appeals deal with the application of Merchants Delivery, Inc. (hereinafter called appellee) filed with the Commission on October 13, 1949 seeking amendment to its common carrier certificate, originally issued October 29, 1935 and subsequently modified and amended, which granted the right to transport merchandise from freight stations in the City of Harrisburg, Dauphin County, to stores in the same city, and from merchants in the City of Harrisburg to points within seventy-five miles of the limits of said city by the usually traveled highways, and vice versa, provided that nothing but returned goods shall be transported back to Harrisburg; and subject to a condition which limits the transportation to such merchandise (with the exception of typewriters and automobile tubes and tires) as does not exceed fifty pounds in weight per shipment. By this present application the appellee sought an increase of the weight limitation from fifty pounds to one hundred fifty pounds. Protests to this application for amendment were filed by certain competing carriers (hereinafter called appellants).
The Commission held hearings on January 26, 1950 and March 6, 1950 and by order dated February 1.3, 1951 dismissed the application for lack of necessity. Prior thereto, in August 1950, the appellee had secured, without protest, an amendment permitting it to carry merchandise from fifty to one hundred fifty pounds in weight in an area lying within a ten-mile radius of the City of Harrisburg. On February 27, 1951 appellee filed a petition for a rehearing, which the Commis
On September 8, 1953 the Commission entered an order in short-form, rescinding its order of February 13, 1951 and granting the additional rights sought by the appellee. The appellants appealed to the Superior Court. On October 22, 1953 the Commission petitioned this Court for remission of the record so that specific findings of fact could be made and an order based thereon entered in lieu of the prior short-form order. This Court, on November 9, 1953, remitted the record as requested. On February 8, 1954 the Commission entered the long-form order from which these appeals were taken by the appellants.
The appellee has twelve % ton closed pick-up delivery trucks which are used to service between 350 and 360 firms in the City of Harrisburg. The twelve trucks start their routine pick-up rounds at 8:00 A.M. each week-day morning, making the last regular pickup for same day deliveries outside of Harrisburg by about 10:30 A.M. The appellee also makes some emergency pick-ups in the afternoon. The trucks return to appellee’s central freight station after the morning pick-up, where the cargo is sorted and reloaded on the trucks; then they fan out making deliveries within their certificated area over approximately eleven routes. If the shipment is picked up on the morning circuit, and it is to be delivered to a point served by the appellee on that day, there is same day delivery within seven hours to delivery points at the extremity of appellee’s area and within a shorter time to points less remote from Harrisburg.
The appellants first argue that the commission’s order of January 28, 1952, allowing evidence taken at prior hearings to be incorporated in the record in the
“There is no doubt in our minds that the Board [of Public Utility Commissioners] must consider the entire record, including the records of both the original hearing and the rehearing.” (Emphasis added)
The appellants argue that they were greatly prejudiced by the action of the Commission in considering the “incorporated” testimony of witnesses Darlington, Blessing, Chronister, Feirman, Sunkle, Mariano and Butler without the right of cross-examination as to changed conditions. In its order of January 28,1952 the Commission said: “In the course of the three hearings on the application ... 12 witnesses appeared and testified in support of the application and 12 witnesses opposed it. The testimony of these witnesses covered 450 pages of transcript. To require all of these persons to appear again and testify at length would needlessly inconvenience the witnesses and unnecessarily prolong the proceeding. If conditions have changed since the witnesses last testified in regard to the application, these or additional witnesses with knowl
In the interest of saving time for all parties concerned, the record of the prior hearing should be admitted at the rehearing unless substantial harm will be done to any of the parties. We do not believe any of the parties could have been harmed in view of the Commission’s order in this case, and practice generally, of permitting examination and cross-examination of any of the prior witnesses, and also of new witnesses, for the purpose of showing any new or changed conditions. Furthermore, the legislature, in granting the
It is also argued that the authority granted to appellee will authorize acts beyond its charter authority. The purpose as expressed in the charter is as follows: “Transporting and delivering for firms, corporations and individuals with whom it may severally contract, goods, wares and merchandise, by means of motor vehicles, to and from points within a radius of 75 miles of the City of Harrisburg. . . .” (Emphasis added) Appellants argue that the words “with whom it may severally contract” require it to be found that the appel
We therefore conclude that the Commission’s order did not authorize an ultra vires act by the appellee.
We will now consider the .principal point raised in these appeals. In granting the certificate, the Commission complied with the Public Utility Law and found that “. . . the granting of the rights sought by applicant is necessary and proper for the service, accommodation, and convenience of the public.” Sec. 203 of Public Utility Law of May 28, 1937, P. L. 1053, 66 PS §1123. Under Sec. 1107 of the Public Utility Law as amended, 66 PS §1437, “The order of the commission shall not be vacated or set aside, either in whole or in part, except for error of law or lack of evidence to support the finding, determination, or order of the commission, or violation of constitutional rights.” The Commission having found as above indicated, our inquiry, as has been stated many times by this Court, is limited to a determination of whether there is substantial evidence to support the findings of the Commission.
The appellants contend that the Commission has ignored (1) the adequacy of the services being rendered by them and (2) that the service proposed by appellee was not shown to be necessary by evidence having rational, probative force. Appellee, in the original hearings, produced at least six witnesses and in the rehearings at least four witnesses Avho Avere OAvners or men Avho were in charge of delivery service for retail and Avholesale businesses located in the City of Harrisburg. Without referring to their individual testimony
Mr. Lehrman of A. J. Lehrman & Sons, dealers in wholesale paper and janitor supplies, said “I am not interested in what the rate costs to ship by any carrier. I am interested in getting the merchandise there fast”; that in November 1951 he had to phone Daily Motor for three days to pick up one shipment; that he
Mr. Chronister of Brenner Motors testified that “We get faster service” from Merchants “because they leave earlier.” He said he called Horn’s Motor Express and asked them about it and they said “they can’t promise same-day delivery.”
The appellants answered this testimony by placing on the stand the men in charge of their operations who, without referring to their individual testimony, generally testified that they had not received complaints as to their service from these witnesses or any other persons and that they were rendering prompt and efficient service. Some of the complaints were given to men on the trucks or people who answered the phone and it is entirely possible that these complaints were not communicated to the top men.* The credibility of witnesses is a matter entirely for the Commission. Zurcher v. Pa. P. U. C., supra.
We have read the entire record in this case and we are convinced that there was competent and adequate testimony to justify the Commission’s order. What was said in Follmer Trucking Co. v. Pa. P. U. C., supra, at page 84, is particularly applicable to this ease: “This is another case in which the application as approved does not extend the area of applicant’s operations but merely extends its operating rights within an area it is already serving. Pertinent, therefore, is the language of this Court in Mod. Trans. Co. v. Pa. P. U. C., 139 Pa. Superior Ct. 197, 203-204, 12 A. 2d 458: ‘The order of the commission has not extended the area of operations of the particular carrier but
What was said in Leaman Trans. Co. v. Pa. P. U. C., supra, at page 558, is also particularly applicable in this case: “As we stated in Zurcher v. Pennsylvania Public Utility Commission, supra, 173 Pa. Superior Ct. 343, 349, 98 A. 2d 218, 221: ‘No particular type of evidence is required; the only requirement is that the evidence as a whole be legally sufficient to support the order of the Commission. Pittsburgh & Lake Erie Railroad Co. v. Pennsylvania Public Utility Commission, supra, 170 Pa. Superior Ct. 411, 420, 85 A. 2d 646. This 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. Kulp v. Pennsylvania Public Utility Commission, 153 Pa. Superior Ct. 379, 382, 33 A. 2d 724. 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.’
The order of the Commission is affirmed.
Buettger et al. v. Pa. P. U. C., 164 Pa. Superior Ct. 388, 392, 64 A. 2d 675; Hutchison v. Pa. P. U. C., 168 Pa. Superior Ct. 319,