181 Pa. Super. 322 | Pa. Super. Ct. | 1956
Opinion by
These four appeals, taken by protestant motor carriers, are from the order, of the Pennsylvania Public Utility Commission of March 14,1955, as supplemented by its order of February 14; 1956, granting an extension in operating territory to applicant, Joseph R' Prostko, trading and- doing business as Altoona-Pittsburgh Freight Line, on his application of July 31,. 1953.
It appears that prior to the application of July 31, 1953, Altoona-Pittsburgh Freight Line had been authorized to render service as a class A motor carrier between the City of Pittsburgh and the Hollidaysburg-AltoonaTyrone area, and as a class D motor carrier between the County of Allegheny and that area. The application sought to extend both class A and class D rights eastward to Huntingdon, Mt. Union, Lewistown, Reeds-ville, Mifflintown, and Mifflin; and in addition it requested permission to serve the off-route point of Bell-wood. The commission, after several hearings, granted the requested enlargment of both class A and class D rights specifically excluding the right “to render local service between points.on the extension, spur routes, and off-route point.”
The order, as now supplemented, granting these rights contains a detailed analysis of the evidence concerning the public need for applicant’s additional service; it also contains findings and conclusions based upon that evidence as it relates to the class A and class D rights of applicant. Since the enlargement of both class A and class D rights applies to the same territory, the evidence presented in support of the additional class A rights is largely applicable to the additional class D rights in so far as it indicates inadequacy of existing service and the extent of the requests for applicant’s service. A difference is in the western terminal areas, class A being limited to the City of Pittsburgh and class D applying to the County of Allegheny.
In its supplemental order of February 14, 1956, the commission made clear that it was intended that applicant have these operating rights under both his class A and class D certificates for the same extended routes
Separate findings of fact respecting class A rights and class D rights were made. These findings relate principally to the inadequacy of existing service.
The principal issue presently before us is the sufficiency of the evidence to sustain the commission’s findings and order.
Enlargment of Class A Rights to Huntingdon and Mt. Union. The commission found an inadequacy of both rail and motor carrier service from the City of Pittsburgh to Huntingdon and Mt. Union. The rail service admittedly involves delays of two or three days in transit; the motor carrier service involves not only long delays in transit but also in pickup and delivery as well. Consignees at these points have found it necessary to search for their freight and pick it up themselves at the Altoona dock of the motor carrier protestant which is presently certified to serve that area; and some consignees have been obliged to use their own trucks for service to Pittsburgh or meet applicant’s trucks at the nearest available point on the original route. There were occasions when business was diverted from Pittsburgh to other areas because of the poor carrier service. Prom our examination of the record we are of the opinion that the evidence supports the findings as to inadequacy of existing service and the need for applicant’s proposed service to these points.
Enlargement of Class A Rights to Lewistown, Reedsville, and Bellwood. The evidence in support of this portion of the proposed extension is not as voluminous as that relating to Huntingdon and Mt. Union, and the requests for applicant’s service to these points are not as numerous. As it relates to Lewistown, Beedsville, and Bellwood, the testimony comes from some of the same witnesses who were interested in Huntingdon and Mt. Union. However, it is substantial under the circumstances. The same delays in pick
Appellants contend that the evidence indicates only a few requests for service to Lewistown, and that consequently no substantial public need for applicant’s service has been established. Admittedly, the amount of traffic in freight from Pittsburgh to Lewistown is smaller than that to Huntingdon and Mt. Union. What may constitute a need for service, indicated in part by the number of requests, depends upon the locality involved and the particular circumstances of each case. In an area such as Lewistown, where the requirements for transportation facilities from the Pittsburgh area are not great, feAver requests will be considered as substantial evidence of public convenience and need for such service. Furthermore, “No matter Ixoav unimpressive this testimony may appear .'. ., it Avas competent testimony and therefore its Aveight Avas for the Commission.” H. J. Gongaware & Sons v. Pennsylvania
Appellant, Hartman’s Transportation Company, asserts that, although there may be evidence of inadequacy of service by Motor Freight Express, there is no substantial evidence of inadequacy by Hartman, the other available motor carrier to Lewistown. This is not, as we view it, in accordance with the record. Although Hartman’s service appeared adequate from the Harrisburg area, one witness testified to occasions when the service from Pittsburgh involved delays in pickup of three or four days; and these were within a few months of the date of the hearing. It was also indicated that Hartman lacked interest in shipments therefrom, and that this carrier did not actively solicit this business until after the application of July 31, 1953, was filed; thereafter the solicitation was occasional. Some shippers used Hartman only when they could not secure service from Motor Freight Express. A lack of interest in this business by all carriers until applicant filed his application clearly appears throughout the record. The shipping public need not be indefinitely inconvenienced by disinterested carriers. See Cage v. Public Service Commission, 125 Pa. Superior Ct. 330, 335, 189 A. 896. The additional competition of applicant, a matter within the commission’s sound discretion, should tend to improve the service of the other carriers in the area. Motor Freight Express v. Pennsylvania Public Utility Commission (No. 1), 180 Pa. Superior Ct. 294, 306, 119 A. 2d 661; Leaman Transportation Company v. Pennsylvania Public Utility Commission, 175 Pa. Superior Ct. 553, 559, 106 A. 2d 901. The statements in Hall's Motor Transit Company v. Pennsylvania Public Utility Commission, 150 Pa. Su
“ ‘We think that one of the weapons in the Commission’s arsenal is the right to authorize competition where it is necessary in order to compel adequate service . . .’”
Enlargement of Glass D Rights to Huntingdon, Mt. Union, Lewistown, Reedsville and Bellwood. The class D rights of applicant involve the same points on the extension as his class A rights, and the evidence of inadequacy of existing service is identical in some respects, and in its entirety it is of the same nature. The difference is largely as it relates to the western terminal areas. The commission again found an inadequacy in the existing service and the need for the proposed •service. There were not as many witnesses to the requested enlargement of class D rights as to the requested enlargment of class A rights; but we think the evidence was substantial and sufficient. Witnesses from such points as Carnegie, Glenshaw, West Mifflin Borough, and Etna testified in support of the application in the same manner as the other witnesses. One of these a witness from the Ford Motor Company, testified that a considerable amount of freight moved from the Pittsburgh area to points on the proposed extension. He stated that Motor .Freight Express was not interested in making any pickups of these shipments and that until a few days prior to the hearing Hartman had not manifested any interest.. His company was obliged to use rail service, which. w;as slow and brought complaints from consignees. It further appeared that several shippers formerly served by applicant from the
Local Service. Applicant was apparently granted and was intended to have the limited right to render local service between points on his present route and points on the extension and spur routes and the off-route point. Appellants contend that there is not sufficient evidence to sustain this grant of authority.
Rule 201 of General Order No. 29 of the commission provides that a class A carrier is one operating “Between fixed termini or over designated routes.” Rule 202 (a) of General Order No. 29 provides that a class A carrier “may receive and deliver property at any point in any township, borough or city which is on the route, and in townships contiguous to such cities or boroughs on the route, but shall not, unless specifically so authorized, engage in local transportation between points in any such borough or city.” It is the position of the commission in the instant case that Rule 202 of
In the instant case there was no evidence of any need for service between points on applicant’s existing routes outside of Allegheny County and points on the extension and spur routes and the off-route point. The commission in its supplemental order states that it took notice of the fact that none of the protestant carriers is authorized to render direct service between some of the points on applicant’s present route and points on applicant’s proposed extended route. The protestants take issue with this conclusion. However, if there are no carriers certified to serve certain of these points, the commission has no authority to grant a certificate to a carrier to render such service without substantial evidence to support the grant. Naturally, relying on Rule 202 of General Order No. 29, there were no findings by the commission in the instant case that such local service was necessary or that existing service is not satisfactory. Applicant entered into a stipulation, and the commission made it part of its order, that he would not render local service between points on the extension and spur routes and the off-route point. There is no explanation for excluding this territory without also excluding local service between points on the existing route and the extended route. What reasons, if any, prompted this distinction are not apparent. This illustrates, in our opinion, the arbitrary manner in which rule 202 (a) may be applied when the commission fails to base its findings and order upon substantial evidence.
Enlargement of Class A Rights and Class D Rights to Mifflintown and Mifflin. The evidence, as we have indicated, substantiates the granting of the extension to Huntingdon, Mt. Union, Lewistown, Reedsville, and Bellwood, but we find no evidence concerning Mifflintown and Mifflin. The commission’s order refers to none. In fact, applicant admits this situation but asserts that these two areas are in the same general area of Lewistown, and that the evidence of need in Lewis-town is sufficient to indicate a need in Mifflintown and Mifflin. We cannot accept this argument. We recog
Moreover, the evidence does not support the commission’s order wherein it grants applicant the right as a class D carrier to transport property from any point in Allegheny County to any point on the extended route east of Hollidaysburg and vice versa. Such right is limited to service between those points established in the evidence and to which we have referred in this opinion.
Noerr Motor Freight, Inc. One of the appellants, Noerr Motor Freight, Inc., complains on appeal of the failure of the commission to exclude any right of applicant to provide service to shippers that Noerr is specifically authorized to serve by virtue of its class D certificate. Noerr has no general commodity rights in the area; it is limited to certain shippers. Under applicant’s present certification as extended, he would be authorized to serve the general public, including those shippers of Noerr who might desire applicant’s service. None of those shippers appeared at any hearing before
Order of the Commission. The order of the commission is modified to exclude the right to render local service between points on applicant’s existing route and points on the proposed extended route and spur routes and the off-route point of Bellwood; to exclude the
As so modified, the order of the commission is affirmed ; each party to these appeals to pay his or its own costs.
Applicant’s proposed extension is from Hollidaysburg to Mifflintown on Highway Route 22 with spur routes to Mifflin on Highway Route 35, to Mt. Union on Highway Route 522, and to Reeds-
As to class A and class D carriers by motor vehicle, see Noerr Motor Freight, Inc. v. Pennsylvania Public Utility Commission, 180 Pa. Superior Ct. 62, 118 A. 2d 248; Modern Transfer Co., Inc. v. Pennsylvania Public Utility Commission, 139 Pa. Superior Ct. 197, 199, 200, 12 A. 2d 458.
See Motor Freight Express v. Pennsylvania Public Utility Commission (No.1), 180 Pa. Superior Ct. 294, 296, 119 A. 2d 661.
See section 801 of the Public Utility Law of May 28, 1937, P. L. 1053, 66 PS §1301; Latrobe Bus Service v. Pennsylvania Public Utility Commission, 175 Pa. Superior Ct. 164, 170, 103 A. 2d 442.
Policy cannot be made a substitute for evidence (Aizen v. Pennsylvania Public Utility Commission, 163 Pa. Superior Ct. 305, 316, 60 A. 2d 443) ; and administrative discretion is not without some limitation (Motor Freight Express v. Pennsylvania Public Utility Commission, 180 Pa. Superior Ct. 622, 627, 121 A. 2d 617).