179 Pa. Super. 46 | Pa. Super. Ct. | 1955
Opinion by
These appeals are from an order of the Pennsylvania Public Utility Commission, dated August 23, 1954; two of the five commissioners dissented. The order granted the application of Jones Motor Company, Inc., at Application Docket No. 59731, folders 8 and 9, to modify its presently certificated class A routes in the Allentown, Bethlehem, Easton, Stroudsburg area by an extension of such routes from Allentown to Pottstown, a distance of 13 miles, with the further right to render through service between points on these class A routes, by way of the extention, and points on applicant’s other class A routes in the Philadelphia, Pottstown, Reading area.
Originally, Jones had class A rights to haul between the Borough of Bally, Berks County, and Philadelphia and intermediate points, including Spring City, Trappe, King of Prussia, and Bridgeport; between Philadelphia and Reading; and between Reading and Bally. These routes are designated as its “southern”
It is obvious that the purpose of the present application was not merely to obtain an extension of class A rights from Allentown to Pottstown, but to effect a consolidation of Jones’ prior distinct and unconnected “northern” and “southern” class A routes. The commission’s order, in effect, provides for such a consolidation, and also has the effect of granting applicant a very substantial portion of those, rights denied it in 1949. As a result Jones could haul from Philadelphia, by using the newly certificated connecting route, as far north as Mountain Home in the Poconos. In addition Jones may haul between such vital areas as the Allentown, Bethlehem, Easton,. Stroudsburg territory and Philadelphia, Reading, or Pottstown.
Following the filing of the instant application on May 17, 1950, protests were filed by at least ten carriers, including Modern Transfer Company, Follmer Trucking Company, Arrow Carrier Corporation, Highway Express Lines, Inc., Fowler & Williams, Inc., Bickley’s Auto Express, D. F. Bast, Perkiomen Trans
On July 28, 1952, the commission, by a short form order, approved the application by a three to two vote. Upon petition of protestants, the commission, on August 25, 1952, granted a supersedeas. On December 8, 1952, the commission granted protestants’ petition for a rehearing, limited to the right of protestants to show changed conditions as to public necessity in the area since the last hearing. Further hearings having-been held, the commission, on April 26, 1954, issued a short form order, again by a three to two vote, affirming its prior order of July 28, 1952, approving the application. Protestants appealed to this Court, which granted their petition for supersedeas on May 24, 1954. Three days later, May 27, 1954, the commission’s petition for remission of the record to enable it to make more specific findings was filed, and on June 8, 1954, we granted the petition. On August 23, 1854, the commission entered the order, from which these appeals have been taken, affirming its prior order of April 26, 1954, by a similar vote.
Our duty on appeal is not to exercise our independent judgment on the record or to weigh conflicting evidence, but it is limited in this respect to the question whether there is substantial evidence to support the
In seeking to combine rights under existing certificates, together with additional authority, the burden of proof was upon applicant to establish (1) the need for the additional and proposed service, and (2) inadequacy of existing service. Modern Transfer Co., Inc., v. Pennsylvania Public Utility Commission, 139 Pa. Superior Ct. 197, 206, 12 A. 2d 458; Lancaster Transportation Company v. Pennsylvania Public Utility Commission, 169 Pa. Superior Ct. 284, 293, 82 A. 2d 291; Zurcher v. Pennsylvania Public Utility Commission, supra, 173 Pa. Superior Ct. 343, 349, 98 A. 2d 218; Leaman Transportation Company v. Pennsylvania Public Utility Commission, supra, 175 Pa. Superior Ct. 553, 558, 559, 106 A. 2d 901. In discussing applicant’s existing “northern” and “southern” routes, the commission’s order of August 23, 1954, states in part: .“Proof of public need is required in every application .for new service. Once proven, such necessity may be •presumed to continue , to .exist until the contrary is conclusively proven.. In transfer, applications, such presumption..continues in favor of the, transferee, after a completed transfer. We note, therefore, that, public convenience and .'necessity, are conclusively established in favor of applicant on this record over all routes involved except for the. 13 miles of connecting route. . . . Restrictions imposed by the Commission upon a .carrier.in favor of competitors, [may] be removed by
•' The finding's of the commission that the authority sought-is necessary or proper for the' service,"'accommodation, convenience, or safety of the- public must be supported by substantial evidence. “In this respect, substantial evidence means such relevant evidence as
The record is voluminous, consisting of approximately 1,000 pages. It would serve no useful purpose to review the testimony of each witness separately, or discuss the alleged absence of detailed findings by the commission. The crucial question is whether the whole record contains substantial evidence to support the grant of the application. In a record so voluminous there is naturally some testimony which, taken out of context and in isolation, might appear superficially to support the commission’s finding of public necessity. The evidence must be substantial in its totality in support of the commission’s order or produce a situation to be resolved by the commission on conflicting evidence.
Applicant presented 52 witnesses, representing various shippers, who purportedly testified on behalf of the application. It is significant that the testimony of 15 of the 52, or approximately 29 per cent, was subsequently repudiated or negatived and rendered valueless as shipper testimony.-tending to show need for •additional service and inadequacy- of existing . service. Some of these 15 witnesses.-, were not authorized by their companies to testify; one company subsequently .ceased.operations;.and another moved out of the area involved.. The testimony of 4 additional, witnesses was also of little value to show inadequacy and need since .they did not use any common carriers for a long
“In some isolated cases there were complaints as to the manner in which some particular utility had served that shipper, but there were still other carriers available which held- certificates”: Modern Transfer Co., Inc., v. Pennsylvania Public Utility Commission, supra, 139 Pa. Superior Ct. 197, 208, 12 A. 2d 458, 463. The" same -may be; said- here. While there may have been isolated- instancés- of inadequacy of existing service'by one carrier and-unsatisfied-'service demands, generally there- were-other-certificated carriers- available.'-In other instancés, -witnesses complained- about :services which some existing--carriers failed to per-form such as.' pick-up - service on call, daily . pickup-service, or-sáme-dáy delivery; yet-admittedly they had never asked for such services.
If the evidence presents a definite conflict as to public need for an applicant’s service in an area, the sufficiency of the available facilities and the extent of competition to be allowed are administrative questions within the sound discretion and judgment of the commission. Zurcher v. Pennsylvania, Public Utility Commission, supra, 173 Pa. Superior Ct. 343, 348, 98 A. 2d 218; Ruettger v. Pennsylvania Public Utility Commission, 164 Pa. Superior Ct. 388, 392, 64 A. 2d 675. Considering the broad scope of the rights sought in the present application, we are unable to say that the evidence, though voluminous, was of such a character or quality as to render it substantial or productive of a definite conflict as to any public need for applicant’s service in the entire area. Of course, it is not necessary that an applicant establish a demand for service in every square mile of the territory certificated; proof of necessity within an area generally is sufficient. Pittsburgh & Lake Erie Railroad Co. v. Pennsylvania Public Utility Commission, supra, 170 Pa. Superior Ct. 411, 421, 85 A. 2d 646; Zurcher v. Pennsylvania Public Utility Commission, supra, 173 Pa. Superior Ct. 343, 349, 98 A. 2d 218; Leaman Transportation Company v. Pennsylvania, Public Utility Commission, supra, 175
The order of the commission is reversed; each of the parties shall pay for printing its own brief, the expense of printing the record, and other costs of the appeals shall be paid one-half by appellants and one-half by intervening appellee.