4 Pa. Commw. 585 | Pa. Commw. Ct. | 1972
Opinion by
On September 12,1966, Manning’s Moving and Storage, Inc., a New Jersey Corporation, filed an application for a certificate of public convenience to “. . . transport, as a Class D carrier, property . . . between points and places in Bucks County, Pennsylvania, and from points in said County, to all points in Pennsylvania, and vice versa.” Protests were filed by 27 potential competitors.
“One of the major issues in this case concerns prior illegal operations and the bona fides of the applicant in engaging in such activity. The record leaves the Commission in doubt concerning this issue.
“It was the Commission’s belief that further hearings should be available to the parties, including the applicant, to present further evidence on the question of bona fides.”
The final hearing on the application was held on January 14, 1970. At this hearing, a stipulation of fact was entered into by all counsel that the applicant’s intrastate moves within Pennsylvania prior to the date of being fined by the Commission for an illegal move in January, 1966, were in good faith. On April 27, 1970, the Commission rescinded its order of March 18, 1968, and granted limited rights to the applicant “. . . between points in the Borough of Morrisville, Bucks County, and within an airline distance of (10) statute miles of the limits of said Borough.”
Appeals were taken to the Superior Court of Pennsylvania by only two of the 27 protestants, the appellants herein. Upon petition of the Commission, the rec
Our scope of review is delineated by the Public Utility Law, Act of May 28, 1937, P. L. 1053, as amended, 66 P.S. §1101 et seq., which provides in Section 1106, 66 P.S. §1437, and Section 1112, 66 P.S. §1442, that the order of the Commission shall not be vacated or set aside on appeal except for error of law or lack of evidence to support it, and that the order shall be prima facie evidence of the facts found.
Appellants raise three issues on appeal: (1) whether the Commission acted arbitrarily and capriciously in rescinding its first order denying the application, granting a rehearing, and, thereafter, granting limited rights, without additional evidence on the issue of necessity; (2) whether the applicant established by substantial evidence the need for additional service or the inadequacy of existing service; and (3) whether the applicant established its ability to render the proposed service.
With respect to the first issue, the Commission has the authority, as in the case of complaints, to amend or rescind any order after notice and opportunity to be heard. Section 1007 of the Public Utility Law, 66 P.S. §1397. It is not necessary that an applicant present new evidence, before the Commission may rescind or amend a prior order under Section 1007. In light of the Commission’s letter of May 27, 1969, we treat the act of granting applicant’s petition to reopen as if the Commission had taken this action on their own initiative under Section 1007, although it was taken through the device of granting the petition of applicant which could have been filed only under Section 1006 of the Public Utility Law, 66 P.S. §1396. Paradise v.
The second and third issues, combined and properly restated, become whether the findings of the Commission are supported by substantial evidence.
Along with other evidence in support of its request for a certificate of public convenience to commence intrastate operations within Pennsylvania, applicant presented evidence of past service as indicative of need. This evidence amounted to a total of 77 moves during the years 1962 through 1965. In view of the stipulation of good faith on the part of applicant with respect to these moves, the Commission properly considered this evidence. Lancaster Transportation Company et al. v. Pennsylvania Public Utility Commission, 181 Pa. Superior Ct. 129, 138-41, 124 A. 2d 380 (1956). Applicant also presented evidence of 77 requests for service between August 1,1966, and September 30, 1966. Evidence of requests for service have been held to go to the issue of need as well as the inadequacy of existing service. Modern Transfer Co., Inc. v. Pennsylvania Public Utility Commission et al., 139 Pa. Superior Ct. 197, 12 A. 2d 458 (1939). Leaman Transportation Corporation et al. v. Pennsylvania Public Utility Commission, 153 Pa. Superior Ct. 303, 33 A. 2d 721 (1943). The record also contains evidence of requests for service which applicant received and referred to existing carriers that they refused because their schedules were completely filled or that they declined because they were simply not interested. In addition, one shipper witness testified in support of the application. The
The Commission properly performed its duty under Section 203 of the Public Utility Law, 66 P.S. §1123, to determine if the granting of the certificate was necessary or proper for the service, accommodation, convenience or safety of the public.
Affirmed.