Arizona Corp. Commission v. Pacific Motor Trucking Co.

• Court: Arizona Court of Appeals
• Writing for the Court: WREN; SCHROEDER, P. J., and EUBANK
• Citation: Arizona Corp. Commission v. Pacific Motor Trucking Co., 569 P.2d 1363, 116 Ariz. 465 (Ariz. App. 1977)
• Decision Date: 30 June 1977
• Docket Number: No. 1,CA-CIV,1
• Parties: The ARIZONA CORPORATION COMMISSION and Kunkle Transfer & Storage Co., Appellants, v. PACIFIC MOTOR TRUCKING COMPANY, a corporation, O. N. C. Freight Systems, a corporation, Reliance Truck Co., Cement Transporters, Inc., Pima Transportation Inc., CTI, G. L. Gibbons and FOPA Trucking, Inc., Appellees. 3603.

Page 1363

569 P.2d 1363

116 Ariz. 465

The ARIZONA CORPORATION COMMISSION and Kunkle Transfer & Storage Co., Appellants, v. PACIFIC MOTOR TRUCKING COMPANY, a corporation, O. N. C. Freight Systems, a corporation, Reliance Truck Co., Cement Transporters, Inc., Pima Transportation Inc., CTI, G. L. Gibbons and FOPA Trucking, Inc., Appellees.

No. 1 CA-CIV 3603.

Court of Appeals of Arizona, Division 1, Department B.

June 30, 1977.

Rehearing Denied Aug. 23, 1977.

Review Denied Sept. 27, 1977.

Shimmel, Hill, Bishop & Gruender, P. C., by Phil B. Hammond, Phoenix, for appellants.

Yankee & Bernstein by A. Michael Bernstein, Evans, Kitchel & Jenckes, P. C., by Earl H. Carroll, Lex J. Smith, Phoenix, for appellees.

OPINION

WREN, Judge.

The Corporation Commission and Kunkle Transfer and Storage Co. appeal from a judgment in Superior Court vacating a Corporation Commission decision. The case originated in 1973 when the Commission issued a Complaint and Order to Show Cause against Kunkle alleging that Kunkle's operating authority was limited to a 25 mile radius of Phoenix. After a hearing the Commission issued its decision concluding that Kunkle's certificate contained no territorial restrictions on transporting general commodities, that for many years the Commission had done nothing to restrict Kunkle's certificate and that it would be unjust to impose such a restriction now. The Commission further concluded that allegations in the Complaint and Order to Show Cause were not supported by the evidence and that a clear and convincing public need and necessity existed for Kunkle's continued operation on a statewide basis. Upon rehearing, the Commission affirmed its prior decision.

Appellees filed an action in Superior Court seeking to vacate the Commission's decision. The trial court considered the record before the Commission and heard additional testimony. In his Findings of Fact and Conclusions of Law, the trial judge found that Kunkle's certificate authorized operations only within a 25 mile radius of Phoenix and that the Commission's decision was unlawful and unreasonable.

The appellants contend that the appellees failed to sustain their burden of proof before the trial court. That burden was to show by clear and satisfactory evidence that the Commission's decision was unreasonable or unlawful. Arizona Corporation Commission v. Reliable Transportation Company, 86 Ariz. 363, 346 P.2d 1091 (1959). This Court's review is limited to whether there is substantial evidence in the record to support the finding of the superior court. DGP Trucking Co. v. FOPA Trucking Co., 26 Ariz.App. 195, 547 P.2d 47 (1976). The trial of an appeal from a Commission decision is de novo and the trial court may hold a Commission order unreasonable on the basis of evidence presented to it even if the Commission acted reasonably in light of the evidence presented at its hearing. Arizona Corporation Commission v. Reliable Transportation Company, supra; See, Sulger v. Arizona Corporation Commission, 5 Ariz.App. 69, 423 P.2d 145 (1967).

The history behind Kunkle's certificate is that in 1944 the Commission granted an application to transfer a portion of a certificate from Chambers Moving and Storage Co. to W. O. Davis dba Davis Transportation. The operating rights transferred to Davis authorized Davis to transport general commodities and livestock within a 25 mile radius of Phoenix. The certificate issued to Davis is Certificate No. 5739 presently held by Kunkle. In 1946, this Certificate No. 5739 was transferred from Davis to Robert W. Kunkle. The transfer application contained no request to amend or enlarge the operating authority but merely to transfer Davis' rights to Kunkle. Certificate No. 5739 was transferred to Robert Kunkle authorizing operations within a 25 mile radius of Phoenix. This certificate was renewed in 1948 and still reflected the 25 mile limitation.

In 1952, Robert Kunkle transferred Certificate No. 5739 from himself to Kunkle Transfer & Storage Co. No notice was given or hearing held according to the Commission's practice at that time. Certificate No. 5739 was reissued to Kunkle Transfer & Storage Co. however the 25 mile restriction was only reflected on the transportation of livestock provision and not on the transportation of general commodities. The...