D. F. Bast, Inc. v. Pennsylvania Public Utility Commission

• Decision Date: 28 September 1959
• Citation: 154 A.2d 505,397 Pa. 246
• Parties: D. F. BAST, INC., Highway Express Lines, Inc., Modern Transfer Company, Inc., Reading Company, Reading Transportation Company, and Hall's Motor Transit Company, Appellants, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, and Bob Young Trucking, Inc., Intervening Appellee and five other cases.
• Court: Pennsylvania Supreme Court

154 A.2d 505

397 Pa. 246

D. F. BAST, INC., Highway Express Lines, Inc., Modern Transfer Company, Inc., Reading Company, Reading Transportation Company, and Hall's Motor Transit Company, Appellants, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, and Bob Young

Trucking, Inc., Intervening Appellee and five other cases.

Supreme Court of Pennsylvania.

September 28, 1959.

John E. Fullerton, Harrisburg, for appellant.

No 311:

William J. Wilcox, Snyder, Wert & Wilcox, Snyder, Wert Wilcox, Frederick & Doll, Allentown, for appellant.

Nos 342 and 341:

Harold A. Butz, George A. Rupp, Butz, Hudders, Tallman & Rupp, Allentown, for appellants.

Nos 301 and 300:

Paul F. Barnes, Shertz, Barnes & Shertz, Philadelphia, for appellants.

Thomas M. Kerrigan, Paul Ribner, Asst. Counsel, Harrisburg, for appellee.

Miles Warner, Asst. Counsel, Philadelphia, Gene D. Smith, Allentown, for Bob Young Trucking, Inc.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, and BOK, JJ.

BENJAMIN R. JONES, Justice.

This is an appeal from a judgment of the Superior Court affirming an order of the Pennsylvania Public Utility Commission ^[1] which amended the original common carrier certificate of the intervening appellee, Bob Young Trucking, Inc. (hereinafter called Young). This amendment authorized Young to exercise certain additional rights in the transportation of iron and steel articles. The action of the Commission was affirmed by a divided Superior Court. ^[2] We granted and allocatur.

On May 15, 1956 Young filed an application with the Commission for a certificate of public convenience to authorize it to 'transport as a Class D. carrier all types and forms of steel and metal articles from the City of Bethlehem to points in Pennsylvania'. At the time of filing this application, in addition to holding other transportation rights not presently material, Young was authorized (1) to transport iron and steel articles by motor vehicles for the Bethlehem Contracting Company in the City of Bethlehem to points in Pennsylvania within 50 miles and (2) to transport, in emergencies, as a Class D. carrier iron and steel articles by motor vehicles from the Bethlehem Steel Company in the City of Bethlehem to points in Pennsylvania within 100 miles. The present appellants [397 Pa. 249] --trucking concerns who are the holders of common carrier certificates--filed protests against the granting of the application.

After extensive hearings, the Commission entered a so-called 'short form' order which extended Young's existing rights. An appeal was taken to the Superior Court; on motion of the Commission, the record was remanded in order that specific findings might be made by the Commission and a so-called 'long form' order entered. On September 3, 1957, the Commission entered a 'long form' order which authorized Young: 'To transport, as a Class D. carrier, fabricated or structural iron and steel articles, on pole, flat-bed or low side trailers, from the City of Bethlehem, situated in Northampton and Lehigh Counties, to points in Pennsylvania, within 100 miles of Bethlehem, excluding the transportation of manufactured iron and steel articles for Bethlehem Steel Company to the City of Johnstown, the Boroughs of Franklin and Conemaugh and the Township of West Taylor, Cambria County'. The present controversy questions the propriety of this order.

In considering an application for a certificate of public convenience, such as presently involved, it is the Commission's duty to determine whether or not 'the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public'. Act of May 28, 1937, P.L. 1053, art. II, § 203, 66 P.S. § 1123. Once such a determination has been made and an order entered by the Commission an appellate court is bound to accede to the Commission's action unless there be an 'error of law or lack of evidence to support the finding, determination, or order * * * or violation of constitutional rights'. Act of May 28, 1937, P.L. 1053, art. XI, § 1107, as amended, 66 P.S. § 1437. The Commission having found that the extension of Young's rights complies with the mandate of § 203 and no error of law or violation of constitutional rights being involved, we examine the record only to determine if there is substantial evidence to support the finding and order of the Commission. 'No particular type of evidence is required; the only requirement is that the evidence as a whole be legally sufficient to support the order of the Commission. Pittsburgh & Lake Erie Railroad Co. v. Pennsylvania Public Utility Commission supra, 170 Pa.Super. 411, 420, 85 A.2d 646. This is met by showing that the proposed service is reasonably necessary for the accommodation or convenience of the public, or by establishing that existing service does not satisfy the public need and that the proposed service would tend to correct or substantially improve that condition. Kulp v. Pennsylvania Public Utility Commission, 153 Pa.Super. 379, 382, 33 A.2d 724, 34 A.2d 165'. Zurcher v. Pennsylvania Public Utility Commission, 173 Pa.Super. 343, 349, 98 A.2d 218, 221; Daily Motor Express, Inc. v. Pennsylvania Public Utility Commission, 183 Pa.Super. 120, 130 A.2d 234; Leaman Transportation Co. v. Pennsylvania Public Utility Commission, 175 Pa.Super. 553, 106 A.2d 901.

The evidence which Young offered in support of its application for an extension of its certificated rights was in large measure premised upon the almost exclusive use by the shipper-witnesses--for at least five years prior to the time of the filing of the present application--of Young's facilities for shipping structural steel requiring the use of specialized equipment. There can be no doubt--in fact, appellee admitted it for the most part--that such service was rendered in violation of Young's certificated rights. The record further discloses that, for the most part, these shippers had not investigated the facilities of other carriers because their shipping requirements were fulfilled, apparently at lower rates, by the illegal service rendered by Young. If this evidence was improper for consideration by the Commission, we are in agreement with the appellants that the Commission's order granting Young additional rights must be set aside.

Service illegally and unlawfully rendered by an applicant for a certificate of public convenience has in the past under certain circumstances been considered legitimate evidence to support the Commission's action in issuing a certificate. Circumstances under which consideration by the Commission of such evidence has been sustained were set forth in Lancaster Transportation Co. v. Pennsylvania Public Utility Commission, 181 Pa.Super. 129, 138, 124 A.2d 380, 385: 'The mere fact of prior operation without commission...