73 Pa. Commw. 53 | Pa. Commw. Ct. | 1983
Opinion by
This is an appeal by Cora E. Miles and William W. Miles (Petitioners) from an order of the Public Utility
This case dates to September 1973 when Petitioners, partners t/d/b/a Deluxe Cab Company,
There is dispute in the briefs regarding whether exceptions to .the Order Nisi were timely filed.
Our review of decisions by ¡the Commission is limited to a determination of whether constitutional rights were violated, an error of law was committed or findings of fact are unsupported by substantial evidence. Yellow Cab Co. of Pittsburgh v. Public Utility Commission, 60 Pa. Commonwealth Ct. 343, 431 A.2d 1106 (1981).
Petitioner’s sole argument on appeal is that the order of 'the Commission must be reversed because the administrative law judge based his decision on Petitioners ’ age
IT IS ORDERED:
1. That the application of Cora E. Miles and William W. Miles, co-partners, t/d/b/a Deluxe Cab Co. was dismissed by Order Nisi adopted March 22, 1979 and entered April 9, 1979, for lack of prosecution.
2. That no additional operating authority will be granted at docket no. A. 86495, F. 1, Am-B.
In the decision 'accompanying the administrative law judge’s order it was noted:
It is apparent that 'the purported applicants do not have an application on file before the Commission. A hearing on the applicants’ fitness was held in anticipation of the Commission’s reinstatement of the application. No such reinstatement has occurred since no petition for reinstatement was filed with the Commission.
Finally, it is apparent from a reading of the entire decision of the administrative law judge, that the language on which Petitioners base their discrimination charge is taken out of context. After determining that no application was properly before the Commission, the administrative law judge noted that it was within the Commission’s discretion to rescind the April 9, 1979 order and reinstate the application. The judge opined, however, that such action by the Commission was not recommended because
*58 the facts .of this case strongly .suggest that the applicants do not intend to operate a second taxicab if it is granted to -them. Mr. Miles is an elderly man who has been in the taxicab business for 31 years. It would not be unreasonable to assume he is ready for retirement. If he were interested in ¡selling his existing taxicab authority, he obviously could get a better price if he were authorized a second taxicab. This fact may tend to explain what appears to be a rekindled interest in this application on Mr. Miles’ part after he had apparently abandoned the application.
Clearly, the discussion of Petitioner’s age went not to his qualification for additional authority, but rather to his intent to operate under the additional authority if granted. The judge did not opine that the additional authority should not be granted because Petitioner was .sixty-three years old; he recommended disapproval because he doubted Petitioners’ stated intention to continue in operation. Petitioner’s, age was merely a fact undermining the credibility of his testimony, not a basis for the denial of his application. Since it is not our function as reviewing court to weigh the evidence, or judge its credibility, Yellow Cab Co. of Pittsburgh v. Public Utility Commission, 50 Pa. Commonwealth Ct. 448, 412 A.2d 1385 (1980), we will not disturb the administrative lav/ judge’s analysis of Petitioner’s intent which was adopted by the Commission.
As we find no abuse of discretion, error of law or violation of constitutional rights in the discussion of Petitioner’s age by the administrative law judge and the Commission, and 'the Petitioners assert no other grounds for reversal, the order of the Commission is affirmed.
Now, March 22,1983, the order of the Public Utility Commission in the above referenced matter, adopted July 17, 1981 and entered July 28, 1981 is hereby affirmed.
During the course of the proceeding before the Commission, Petitioners formed a corporation, Deluxe Oab Company, and the rights under the existing carrier certificate were transferred to the corporation with Commission approval.
In response to the Commission’s letter, Petitioners, through their attorney, initially requested an additional twenty days in which to supply the additional information sought. Shortly thereafter, the attorney informed the Commission that his representation of Petitioners had ceased. No other response was received by the Commission.
Petitioners claim that exceptions were filed with the Commission on or about April 17, 1979. Search oí 'the Commission’s files and those of the Secretary’s Bureau revealed no record of the exception.
Petitioners’ brief states tbe age of William W. Miles to be sixty-three. Cora E. Miles is William W. Miles’ mother. The record shows .that at the time of the 1980 hearings she was ninety-one and had recently suffered a stroke. William Miles testified at that time that she did not and would not participate in 'the operation of the cab company.