185 Pa. Super. 115 | Pa. Super. Ct. | 1958
Opinion by
These appeals are by The Pennsylvania Railroad Company, The New York Central Railroad Company, and The Baltimore and Ohio Railroad Company from an order of the Pennsylvania Public Utility Commission which granted to Blake Brown and Howard Brown, a partnership conducting a motor transportation business in the Borough of Curwensville, Clear-field County, under the name of “Brown Brothers,” the limited right to transport coal to areas in eastern Pennsylvania for two coal companies which were previously served only by the railroads. The authorization of this limited motor transportation was based primarily on evidence of the existence of a shortage of rail cars for coal hauling during the “Lake Season,” April to October, when iron ore is shipped over the Great Lakes to the steel mills.
Prior to this application Brown Brothers had authority to transport coal, clay, sand, lime, cinders, and other solid fuels between points in a radius of sixty air miles of the Borough of Curwensville, Clearfield County, with certain exceptions and limitations. On December 18, 1955, an application was filed with the commission to amend the existing certificate of public convenience of Brown Brothers in order to acquire the additional right to transport coal, clay, and sand in bulk in dump trucks from points in the counties of
“(a) To transport, as a Class D carrier, coal, in dump trucks, for Bradford Coal Company from points in the County of Clearfield to points located beyond an airline distance of sixty (60) miles of the limits of the Borough of Curwensville, Clearfield County, east of a north-south line drawn through said Borough.
“(b) To transport, as a Class D carrier, coal, in dump trucks, for Thomas Brothers Coal Company from points in the counties of Clearfield and Jefferson to the City of Philadelphia, Philadelphia County, and within twenty-five (25) miles of City Hall in said city.”
In granting such additional rights the commission found that the existing service was inadequate and unsatisfactory, and that it would be a convenience to the public to permit applicant to compete with the protestant railroads to such limited extent.
The applicant was also given the limited right to transport sand to E. M. Brown, Inc., and to transport clay for Haws Refractories Company, as we have previously noted. The latter rights are not involved in these appeals.
Appellant railroads present two questions — (1) whether the evidence supports the grant of authority to transport coal to areas as extensive as the commission has determined, and (2) whether the commission erred in granting permanent authority to transport coal instead of temporary authority to meet what the railroads contend was a temporary need. The ability of the applicant to render the authorized service is not questioned.
As we have repeatedly stated, our review is not to substitute our judgment for that of the commission,
In support of the application the first witness was Blake Brown, one of the partners of Brown Brothers. We shall summarize his testimony. The applicant, for sixteen years, has held a certificate of public convenience, and has been authorized to transport coal, clay, sand, lime, cinders, and other solid fuels between points in a radius of sixty air miles of the Borough of Curwensville where the headquarters and facilities of applicant are located. The application for additional rights to transport coal was filed because of requests to have coal hauled outside applicant’s existing authorized territory in the eastern part of Pennsylvania. The practicability of transporting bulk commodities by dump truck over long hauls has improved in the last few years because of an increase in the allowable weight limit in Pennsylvania from 45,000 to 60,000 pounds, thereby permitting net loads of fifteen to twenty tons. Applicant owns trucks equipped with deisel engines which tend to make long hauls economical.
The traffic manager of the Bradford Coal Company, Cecil E. Morris, also testified in support of the application. His company ships annually 100,000 to 200,-000 tons of coal largely from Clearfield County to electric power plants, industrial manufacturers, and a few retail outlets in Pennsylvania. Some of the points of destination are Philadelphia, Reading, Billmyer, Harrisburg, Hanover, Sunnybrook, Easton, York, and Lancaster. The company ships to any place from which it receives an order if the destination is covered by a railroad tariff; this is mostly in eastern Pennsylvania.
Jefferson Thomas, managing partner of Thomas Brothers Coal Company of Grampian, Clearfield County, testified. Coal is shipped by Thomas Brothers to the Philadelphia area at an annual rate of approximately 15,000 tons. The tonnage would increase in 1956. It has been shipping primarily by rail, and suffered a shortage of rail cars from July to September, 1955, as supplied by the Baltimore and Ohio and the New York Central railroads. His company received approximately 40 per cent of the rail cars requested during that period. As a result the company sus
The protestants admitted in their evidence that there was a serious rail car shortage in 1955, and that another rail car shortage was expected in 1956; but stated that thereafter the situation would be remedied by the railroads.
Bradford Coal Company. The commission, after receiving this evidence, granted authority to applicant to transport coal for the Bradford Coal Company from points in Clearfield County to points located beyond an air line distance of sixty miles from the limits of the Borough of Curwensville and east of a north-south line drawn through the borough. The railroads argue that the witness from the Bradford Coal Company mentioned only a few destination points in southeastern Pennsylvania, and that this testimony cannot support the grant of authority to haul for this company to all points in eastern Pennsylvania. We have frequently said it is not necessary that an applicant establish a present demand for his service in every square mile of the territory to be certified; proof of necessity within the area generally is sufficient. Garner v. Pennsylvania Public Utility Commission, 177 Pa.
We think the need for additional motor truck service for this coal company has been established by the evidence of the rail car shortage, by the testimony relating to requests for motor truck service, and by proof of the delay in rail shipments. Pittsburgh & Lake Erie Railroad Co. v. Pennsylvania Public Utility Commission, supra, 170 Pa. Superior Ct. 411, 420, 85 A. 2d 646.
Thomas Brothers Coal Company. The commission granted applicant authority to transport coal for Thomas Brothers Coal Company to points within twenty-five miles of City Hall, Philadelphia. The testimony of the witness from this company indicated that it ships coal to the Philadelphia area for brokers, and that, because of the rail car shortage, there is a need for motor truck service in addition to that provided by the railroads. The railroads point out that on cross-examination the witness testified that the coal is shipped on instructions from brokers; that the witness did not know the customers to whom the coal was sold; and that the customers pay the freight charges. The railroads argue that the cross-examination of this witness minimizes the probative force of his testimony concerning the need of his company for additional service. We are not persuaded by this argument. The testimony of this witness on cross-examination did not have the effect of precluding his direct testimony of need from the commission’s consideration. It is immaterial whether shipping instructions are given by the brokers, the customers, or Thomas Brothers Coal Company. This would have no effect upon the existence of the rail car shortages as they have been established-in this record. As a matter, of fact, without the certification of this applicant or some-other motor
The further argument is presented that the evidence does not support the grant of authority to transport coal for Thomas Brothers Coal Company to the area within twenty-five miles of City Hall, Philadelphia. It may be true that the Avitness did not specify, other than in general terms, the area near Philadelphia into Avhich shipments of coal were made by his company. But we cannot say that Avhen the commission, acting on this testimony, defined the area as Avithin twenty-five miles of City Hall, Philadelphia, it acted unreasonably or beyond the scope of the evidence. See Zurcher v. Pennsylvania Public Utility Commission, supra, 173 Pa. Superior Ct. 343, 349, 98 A. 2d 218. The record clearly indicates that customers of this company Avithin- twenty-miles of City Hall, Philadelphia, Avould be affected by the rail car shortage, the same as any other customer of the company.' The limited extent of the right granted to transport coal from this company protects the railroads in this respect. In any event, if the company has no customers within twenty-five miles of City Hall, Philadelphia, the railroads could not be harmed.
The final contention of the railroads is that the evidence, at best, established merely a temporary need for additional service due to a temporary rail car shortage. Both shipper witnesses for the applicant testified to the serious rail car shortage during the “Lake Season,” and they anticipated the shortage to recur in 1956. The witness from Thomas Brothers Coal Company, whose testimony was taken in May of 1956, indicated that the shortage for 1956 was then developing. In addition, the evidence presented by the railroads substantiated the recurring rail car shortage. Exhibit E of The Pennsylvania Railroad Company showed that Bradford Coal Company had ordered 2,006 rail cars in the period between July and November, 1955, and that it had been supplied with 1,107 or 55 per cent. The witness for The Pennsylvania Railroad Company admitted that the shortage in 1955 was serious, and that complaints were received; that a shortage was expected in 1956, but not in 1957; that the railroad had set up schedules to allocate a percentage of empty cars for mines in 1956; that the heaviest shipments of coal from the Clearfield County area apparently take place at the same time as the Great Lakes shipping season; and that the result is a car shortage from July to No
It was permissible for the commission to conclude on the basis of the evidence that there had been a serious rail car shortage; that it was developing again in 1956; and that it would continue despite the efforts of the railroads to remedy the situation. It was not necessary on this record that the commission limit the right of applicant to perform the requested service to a specific season or only during a rail car shortage. It appears from its order that the commission believed, in view of the prior unsatisfactory service rendered by the railroads, that it was necessary to introduce an element of competition to facilitate transportation of coal for these two companies. See Sayre v. Pennsylvania Public Utility Commission, 161 Pa. Superior Ct. 182, 184, 54 A. 2d 95. The limited certificated rights of applicant in this proceeding, will make available to these coal companies and their customers an additional and alternative means of transportation and should tend to improve the service of the railroad carriers. Noerr Motor Freight, Inc. v. Pennsylvania Public Utility Commission, supra, 181 Pa. Superior Ct. 322, 331, 124 A. 2d 393. The coal companies will continue as rail shippers. If the railroads meet car- requirements the coal companies may not be obliged to resort to
The order is affirmed.
See Act of May 28, 1937, P. L. 1053, §1005, 66 PS §1395.