Community Moving & Storage, Inc. v. Public Service Com'n of West Virginia

• Decision Date: 14 December 1994
• Docket Number: No. 22156,22156
• Citation: 453 S.E.2d 619,192 W.Va. 636
• Court: West Virginia Supreme Court
• Parties: COMMUNITY MOVING & STORAGE, INC.; Evans Transfer and Movers, Inc.; and Central Storage Company, Inc., Appellants, v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA and Adkins Transfer, Inc., Appellees.

Page 619

453 S.E.2d 619

192 W.Va. 636

COMMUNITY MOVING & STORAGE, INC.; Evans Transfer and Movers, Inc.; and Central Storage Company, Inc., Appellants, v. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA and Adkins Transfer, Inc., Appellees.

No. 22156.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 28, 1994.

Decided Dec. 14, 1994.

Syllabus by the Court

1. " 'An applicant for a permit to operate in this state as a contract carrier as provided in Code, 1931, 24A-3-3(a), as amended, must establish to the satisfaction of the Public Service Commission, inter alia, that the privilege sought will not impair the efficient public service of any authorized common carrier or common carriers adequately serving the same territory and this is especially applicable when a protest to the application is received by the commission from a common carrier serving the same territory.' Syllabus Point 1, Mountain Trucking Co. v. Daniels, 156 W.Va. 855, 197 S.E.2d 819 (1973)." Syllabus Point 1, Taxi Service, Inc. v. Public Service Commission, 177 W.Va. 716, 356 S.E.2d 470 (1987).

2. "The needs of a shipper cannot override the statutory requirement under W.Va.Code, 24A-3-3(a), that a contract carrier show that no impairment of the efficient public service of a common carrier serving the same territory will occur if a permit is issued." Syllabus Point 2, Taxi Service, Inc. v. Public Service Commission, 177 W.Va. 716, 356 S.E.2d 470 (1987).

3. " '[A]n order of the public service commission based upon its finding of facts will not be disturbed unless such finding is contrary to the evidence, or is without evidence to support it, or is arbitrary, or results from a misapplication of legal principles.' United Fuel Gas Company v. The Public Service Commission, 143 W.Va. 33, 99 S.E.2d 1 (1957). Syllabus Point 5, in part, Boggs v. Public Service Comm'n, 154 W.Va. 146, 174 S.E.2d 331 (1970). Syllabus Point 1, Broadmoor/Timberline Apartments v. Public Service Commission, 180 W.Va. 387, 376 S.E.2d 593 (1988)." Syllabus Point 1, Sexton v. Public Service Comm'n, 188 W.Va. 305, 423 S.E.2d 914 (1992).

Charles D. Perfater, Perfater & Perfater, Charleston, for appellants.

Lisa L. Wansley, Charleston, for Public Service Com'n.

Thomas N. Hanna, Charleston, for Adkins Transfer, Inc.

PER CURIAM:

Community Moving & Storage, Inc., Evans Transfer and Movers, Inc., and Central Storage Company, Inc. (the common carriers) appeal an order of the West Virginia Public Service Commission (PSC) granting Adkins Transfer, Inc. a contract carrier permit to provide a delivery service for Montgomery Ward & Co. Alleging that as common carriers, they can perform the Montgomery Ward delivery service and that their efficient public service will be impaired if Adkins is permitted to operate the delivery service, the common carriers appeal to this Court. Because the record indicates that the PSC's decision was supported by substantial evidence, we affirm the final order of the PSC.

On November 30, 1992, Adkins, a Florida corporation, filed an application with the PSC for a contract carrier permit to transport merchandise between Montgomery Ward's retail stores in Harrison, Kanawha, Monongalia and Wood counties and to other points in West Virginia. ¹ The common carriers, alleging they can provide the same service, protested the requested permit. After a hearing, the administrative law judge for the PSC recommended granting Adkins the contract carrier permit. The common carriers filed exceptions to the recommended decision. On November 9, 1993, the PSC entered its final order adopting the recommended decision to grant Adkins the contract carrier permit. Alleging that the PSC failed to consider the similar service provided by the common carriers and the adverse effect on the common carriers if the permit is granted, the common carriers appeal to this Court.

I

Beginning in October 1992, Montgomery Ward, a department store, entered into a nationwide contract with Adkins for the delivery of furniture and appliances. In West Virginia, four of Montgomery Ward's stores would be part of the switch to Adkins' delivery service. ² In 1992, these four stores had over 10,000 deliveries. Although Montgomery Ward currently employs its own delivery personnel and uses its own trucks, under the Adkins contract, Adkins would employ and supervise the delivery personnel, who would wear Montgomery Ward uniforms, and would own and provide delivery trucks, most of which would carry the Montgomery Ward logo.

The service proposed by Adkins includes: (1) a telephone call setting up a delivery one day in advance; (2) a delivery appointment with a four-hour range; (3) trucks equipped with cellular telephones or, where necessary, beepers, to facilitate communications among the customers, the stores and delivery personnel; (4) installation of appliances that do not require any new plumbing or electrical work; and (5) the use of experienced, courteous, uniformed delivery personnel. Adkins proposes to tailor its delivery service to each store's requirements, to purchase existing Montgomery Ward equipment, and in most cases, to hire existing delivery personnel, provided they meet Adkins' requirements. At the hearing, Nathan Adkins, the Secretary-Treasurer of Adkins, said that he was developing an employee retirement and insurance program. Mr. Adkins also presented information about his company's accounting, billing and personnel reimbursement procedures. Under the contract Adkins would be paid $31.75 per delivery made. Mr. Adkins indicated that this new service could begin within three weeks.

According to Stephen Pater, Montgomery Ward's Home Delivery Manager, the store requires a dedicated delivery service because of their large volume, the need for experienced installers, the advantages in customer communications because of the pre-calls and use of cellular telephones, and the need to control the entire delivery process. Mr. Pater testified that the common carriers submitted a delivery proposal for the four West Virginia stores. According to Mr. Pater, the common carriers proposed to charge approximately $36 per hour for their service, even if the delivery were not made. Mr. Pater noted that, in the past, hourly rates were difficult to budget and resulted in tremendous budget overruns. In addition, the common carriers' trucks are not currently equipped with cellular telephones and the common carriers' proposal did not include a pre-call the evening before a delivery to the customer to assure correct and timely deliveries.

Leonard E. Papa, President of Community Moving and Storage and Central Storage, and General Manager of Evans Transfer, testified that together the common carriers have authority to transport goods intrastate in all the Montgomery Ward delivery areas, have offices in Shinnston, Nitro and Clarksburg, own 20 pieces of equipment and employ 35 persons. Mr. Papa noted that the common carriers have successfully delivered furniture and appliances for other department stores and currently provided a delivery service for three stores. ³ Mr. Papa noted that the charge of the common carriers' delivery proposal was based on the common carriers' tariff filed with the PSC and would be close to $36 per hour. However the quoted tariff rate could not be found in the approved tariff rates for the common carriers either for Northern or Southern West Virginia.

Mr. Papa explained that unlike a simple delivery service, the common carriers have the capability, training and experience necessary to move whatever the public requires including: pianos, delicate computers, massive equipment and entire households. Mr. Papa noted that the common carriers' employees have an attractive benefit and retirement package. According to Mr. Papa, although their trucks did not have cellular telephones, the common carriers recognized the benefits and were willing to use cellular telephones. Mr. Papa noted that the common carriers would need new, smaller equipment suitable for smaller short range home deliveries. Finally Mr. Papa said that the common carriers' drivers could wear appropriate uniforms and Montgomery Ward's logo could appear on a dedicated truck.

Mr. Papa noted that the dedicated service currently provided by one of the common carriers costs $43.20 per hour and that between 250 to 300 monthly deliveries are made. ⁴ The store calls its customers to set up and to verify the delivery. Of all these deliveries, Mr. Papa recalled that in May 1992 only one person was not home and only one wrong lot was delivered.

Mr. Papa said he was willing to apply to the PSC for a per delivery tariff but did not indicate what the proposed flat tariff would be. Mr. Papa said that removing the Montgomery Ward delivery segment from the common carriers would be something his companies could never overcome because of the shrinking client base. Mr. Papa acknowledged that the common carriers would need additional personnel and would consider hiring Montgomery Ward's current delivery personnel. The common carriers would be ready to provide delivery service to Montgomery Ward within several weeks under their present tariff until a per delivery rate was approved by the PSC.

II

Traditionally, we have recognized a statutory distinction between a common carrier, which is regulated by W.Va.Code 24A-2-1 [1937] et seq. and a contract carrier, which is regulated by W.Va.Code 24A-3-1 [1937] et seq. In Taxi Service, Inc. v. Public Service Comm'n, 177 W.Va. 716, 721, 356 S.E.2d 470, 475 (1987), we noted that "[o]ne of the most significant differences [between these carriers] is the elements of proof that need to be shown to obtain a permit." ⁵

Although to obtain a permit a common carrier needs only to show "that public convenience and necessity require the proposed service" (Syl. pt. 2, in part, Weirton Ice & Coal Supply Co. v. Public Service Comm'n, 161 W.Va. 141, 240 S.E.2d 686 (1977)), a contract carrier must show that its...