188 Pa. Super. 449 | Pa. Super. Ct. | 1959
Opinion by
On August 5, 1957, Pennsylvania Public Utility Commission, of its own motion, filed a complaint against Jones Motor Company, Inc., charging it with violation of Art. II, §202(b) and (c) of the Public Utility Law of May 28, 1937, P. L. 1053, as amended, 66 PS §1122. The basis of the complaint was the transportation of commodities by motor truck as a common carrier between points in Pennsylvania without certification by the Commission. Highway Express Lines, Inc., and Modern Transfer Company, Inc., holders of certificates of public convenience issued to them by the Commission, were granted leave to intervene in the proceeding on their allegation that they were adversely affected by the unauthorized carrier activity of the respondent in Pennsylvania.
The complaint specifically charged 22 violations which included: eleven shipments originating in Philadelphia for delivery in Allentown, Bethlehem, Easton and Catasauqua, Pennsylvania; four shipments originating in Easton destined for Philadelphia and Hatboro, Pennsylvania; three shipments originating in Bethlehem for Philadelphia; one shipment originating in Oaks for Bethlehem; one shipment originating in Emmaus for Philadelphia; one shipment originating in Catasauqua for Philadelphia; and one shipment originating in Chester for Bethlehem. That these shipments had been made, was admitted by the respondent; in justification however it asserted certificates of public convenience and necessity issued by the Interstate Commerce Commission, specifically set forth in its answer to the complaint.
The respondent, Jones Motor Company, Inc., holds a number of certificates issued by Pennsylvania Public Utility Commission authorizing it to transport property as a Class A common carrier between points with
Jones Motor Company, Inc., under Interstate Commerce Commission certificate MC 4968 had authority to transport commodities “From Philadelphia over U. S. Highway 1 to New York and return over the same route.” Under the same certificate ancillary carrier service by this respondent ivas authorized: “to and from off-route points ... in that part of New Jersey within 35 miles of Princeton, N. J. . . .” Both Trenton and Clinton, N. J. are within 35 miles of Princeton.
Prior to August 18, 1952, Clinton Motor Express had interstate commerce rights, as a common carrier over U. S. Highway Boute 22 between Allentown, Pennsylvania, via Clinton, to Elizabeth, New Jersey. On the above date Jones Motor Company, Inc., with the consent of the Interstate Commerce Commission, acquired by purchase all of the operating rights of Clinton Motor Express. After the sale was consummated, the Jones company, by I. C. C. certificate numbered MC 4963 Sub 7, was authorized to operate as a common carrier “Between Allentown, Pa., and Elizabeth, N. J. . . . over U. S. Highway 22 to junction New Jersey Highway 28” and thence to Elizabeth “and return over the same route”. Under this certificate service was
The operation with which we are concerned in the shipments described in the complaint, consists in a combination of authorized service from Philadelphia under certificate MC 4963 to Clinton, N. J. joined by a “tacking” process upon that authorized by I. C. C. certificate MC 4963 Sub 7 which included service on U. S. Route 22 between Clinton and points within 25 miles from Allentown. Respondent admittedly in 1953 began the transportation of general commodities between the two areas of Philadelphia and Allentown under the above two I. C. C. certificates and has continued that service without authority from our Public Utility Commission. It is not without significance that the Jones company in 1950 had filed an application with our Public Utility Commission in an effort to consolidate its distinct and unconnected “northern” and “southern” class A routes in Pennsylvania, above referred to, for which it held Pennsylvania P. U. C. certificates of public convenience. The order of the Commission granted on the application allowed an extension of routes from Allentown to Pottstown, a distance of 13 miles which in effect, by connecting the two certified local areas, gave respondent intrastate common carrier rights between the Philadelphia area and Allentown and to Stroudsburg on the north. On appeal to this court, however by a number of carriers which had protested the application before the Commission, we reversed the order on the ground that inadequacy of existing service and the need for the additional service as proposed had not been proven. Modern Tr. Co. et al. v. Pa. P. U. C.; 179 Pa. Superior Ct. 46 (1955), 115 A 2d 887. An allocatur to the Pennsylvania Supreme Court was refused. Thus it not only
Jurisdiction over interstate transportation by motor vehicles was conferred on the Interstate Commerce Commission by the Federal Motor Carrier Act of August 9, 1935, as amended, 49 U.S.C.A. §301 et seq., which however in §302(b) provides: “Nothing in this chapter shall be construed to affect the powers of taxation of the several States or to authorize a motor carrier to do an intrastate business on the highways of any State, or to interfere with the exclusive exercise by each State of the power of regulation of intrastate commerce by motor carriers on the highways thereof.” Thus the Congress has asserted a hands-off policy by expressly recognizing the power of each State to regulate commerce within its borders. Eichholz v. Public Service Commission, 306 U. S. 268, 59 S. Ct. 532 was a case in which the Commission had revoked Eiehholz’ carrier permit on a finding that he had unlawfully engaged in intrastate commerce under the pretense of transacting interstate business. On appeal the District Court from the evidence found that the carriage of property from Missouri into Kansas and thence back into Missouri for delivery there was not “ The normal, regular or usual route’ for shipping merchandise between the two cities in Missouri” and the court accordingly refused to issue a permanent injunction restraining the State Commission from prosecuting actions against Eiehholz for using State Highways in the transporting of property for hire in interstate commerce. On appeal, the Supreme Court of the United States in affirming the order said: “We may assume that Congress could regulate interstate transportation of the sort here in question, whatever the motive of those en
The obvious intent of the Interstate Commerce Commission’s certificate is to permit a carrier to engage in interstate commerce and regulation of such service is the extent of the Commission’s jurisdiction. Moreover, interstate commerce, to be entitled to protection as such “must be real and bona fide”: Blackmore et al. v. Public Service Commission, 120 Pa. Superior Ct. 437, 183 A. 115. Tacking of the authority in the present case, under certificate MC 4963 to that of certificate MC 4963 Sub 7 was entirely proper in establishing through routes in interstate commerce [Cf. 49 U.S.C.A. §316 (c) ] but such tacking cannot supply a carrier with authority to transport property in intrastate commerce. Service Storage & Transfer Co. v. Commonwealth of Virginia, supra. The Commission found that the shipments here involved were not bona fide interstate and in its order said: “It is quite apparent that we cannot, in these circumstances, regard routing via New Jersey under mere color of interstate operating authority as anything other than a subterfuge to provide what is in fact intrastate service.” That conclusion was inevitable especially after respondent had been denied a certificate by our Public Utility Commission authorizing transportation of property intrastate between
In this case the evidence was entirely sufficient to support the findings of the Commission that the Interstate Commerce Commission had not assumed jurisdiction of carrier transportation between two points in Pennsylvania, via New Jersey and that the movement by respondent across the State line was but a subterfuge to evade the State’s requirements as to intrastate commerce. Atlantic Freight Lines v. Pa. P. U. C., supra. Accordingly, the entry of a cease and desist order was proper in this case.
Order affirmed.