Browning-Ferris Industries of South Atlantic, Inc. v. Public Service Com'n

• Decision Date: 03 June 1985
• Docket Number: BROWNING-FERRIS,No. 16290,16290
• Court: West Virginia Supreme Court
• Parties: INDUSTRIES OF SOUTH ATLANTIC, INC. v. PUBLIC SERVICE COMMISSION and Lawco Disposal Co., Inc.

Page 862

330 S.E.2d 862

175 W.Va. 52

BROWNING-FERRIS INDUSTRIES OF SOUTH ATLANTIC, INC. v. PUBLIC SERVICE COMMISSION and Lawco Disposal Co., Inc.

No. 16290.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 29, 1985.

Decided June 3, 1985.

Syllabus by the Court

"In a proceeding for a certificate to operate as a common carrier an order of the Public Service Commission will not be disturbed on appeal unless its findings are contrary to the evidence, are without evidence to support them, are arbitrary or result from a misapplication of legal principles." Syl. Pt. 1, Weirton Ice & Coal Supply Co. v. Public Service Commission, 161 W.Va. 141, 240 S.E.2d 686 (1977).

Homer W. Hanna, Jr., Hanna & Elliott, Charleston, for petitioner.

Mark G. Thessin, Staff Atty., PSC, Charleston, for PSC.

Christopher Chiles, Dodrill & Chiles, Huntington, for respondent.

PER CURIAM:

The appellant, Browning-Ferris Industries of South Atlantic, Inc. (BFI), appeals from a final order of the Public Service Commission (PSC), which affirmed an earlier decision of the Hearing Examiner to grant Lawco Disposal Co., Inc., a Ohio corporation, a certificate of convenience and necessity to operate as a common carrier in the transportation of waste materials in Cabell and Wayne County. BFI assigns several errors that it maintains warrant reversal of the PSC's issuance of a certificate of convenience and necessity. Primarily, it contends that the new service proposed by Lawco is neither convenient nor necessary. After careful examination of the evidence presented below, we agree, and therefore reverse the decision of the PSC.

On September 27, 1982, Lawco filed an application with the PSC for a certificate of convenience and necessity. At a hearing held on December 21, 1982, it presented a number of witnesses, including its president and secretary-treasurer, and several entrepreneurs from the Huntington area.

Lawco's president, Sara Odekirk, testified as to the general operations of the corporation and as to her business acumen. Lawco's secretary-treasurer, R.M. Odekirk, testified further on behalf of the corporation. Kevin Thompson, an employee of Abilene Corporation, testified generally concerning the cost versus quality of waste disposal service in the Huntington area. The testimony of William Rood, a former employee of Wendy's International, indicated his dissatisfaction with available service in the Huntington area during his former employment. Finally, Michael Whisman, owner of the Wright Christian Don Co., Inc., complained of high costs and indicated that his company was currently hauling away their refuse with their own equipment, and would continue to do so in the future.

BFI, on the other hand, presented a large number of witnesses, all of whom testified that the service furnished by existing transportation facilities was efficient and adequate; that all reasonable needs in the area were being met by the current service; and that Lawco's entry into the field would adversely affect the public. The final witness at the hearing was the Director of the Motor Carrier Division of the Public Service Commission, Franklin Crabtree. Crabtree stated that certain matters relating to Lawco should be made part of the record in the present case. Specifically, he submitted a memorandum from Vernon Ruby, Inspector, dated December 7, 1982, that had been directed to Crabtree, and a copy of a cease and desist order from the PSC to Lawco. Ruby's memorandum stated:

My investigation of Lawco Disposal Co., Inc., shows that they were directed by Motor Carrier Division employees to cease and desist illegal operations in Wayne, and Cabell, Counties in 1976, 1972, and 1978. All of these directives were ignored. In May of 1979 the commission issued M.C. Order No. 19688, ^* ordering Lawco Disposal Company to cease and desist operating anywhere in the state without first obtaining a certificate or contract carrier permit. According to Mr. Hatfield, who was the officer in charge of this case, Lawco employees and officers attempted to avoid being served with this order, and after the order was...