Erb v. Public Service Commission

• Court: Pennsylvania Superior Court
• Writing for the Court: CUNNINGHAM, J.
• Citation: Erb v. Public Service Commission, 93 Pa.Super. 421 (Pa. Super. Ct. 1928)
• Decision Date: 16 April 1928
• Docket Number: 378-1927
• Parties: Erb, Appellant, v. The Public Service Commission of Pennsylvania

93 Pa.Super. 421

Erb, Appellant, v. The Public Service Commission of Pennsylvania

No. 378-1927

Superior Court of Pennsylvania

April 16, 1928

Argued March 15, 1928

Appeal by respondent from order of The Public Service Commission Complaint Docket No. C-7252 -- 1927, sustaining complaint wherein Lehigh Valley Transit Company and Reading Company were complainants and Fred Erb was respondent.

Complaint against the operation of a common carrier service without a certificate of public convenience.

The facts are stated in the opinion of the Superior Court.

The Commission issued an order requiring respondent to cease operating until he secured a certificate of public convenience. Respondent appealed.

Error assigned was the order of the Commission.

John A Boyle, for appellant.

John Fox Weiss, Counsel, and with him Wendell Y. Blanning Assistant Counsel, and E. Everett Mather, Jr., Legal Assistant, for appellee.

Charlemagne T. Wolfe and William J. Wilcox, and with them Thomas J Perkins, for the intervening appellees.

Before Henderson, Trexler, Keller, Linn, Gawthrop and Cunningham, JJ.

OPINION

CUNNINGHAM, J.

The Lehigh Valley Transit Company, a public service company, transporting not only passengers but also express matter and light freight between Philadelphia, Bethlehem, Allentown and Easton, complained to the Public Service Commission that Fred Erb, a resident of Philadelphia, was engaging in the business of a common carrier, for hire, of freight and merchandise between these cities by means of motor vehicles without having secured the approval of the Commission. The Reading Company was permitted to intervene in the complaint.

The Commission, after a hearing and investigation in accordance with the act creating it, sustained the complaint and ordered Erb to desist from the transportation business in which he is now engaged until he shall have obtained a certificate of public convenience in approval thereof. Erb, having denied in his answer that he is " operating motor vehicles as a common carrier" and having averred that he is operating only as a private carrier " for the delivery of goods under contract with certain houses in Allentown and Bethlehem," now appeals from the order.

Our Public Service Company Law applies not only to incorporated common carriers doing business within this state but also to " all persons engaged for profit in the same kind of business." Common carriers are thus defined: " the term 'common carrier' as used in this act includes any and all common carriers, whether corporations or persons, engaged for profit in the conveyance of passengers or property, or both, between points within this Commonwealth, by, through, over, above or under land or water, or both." As clearly stated for this court by Judge Keller in an opinion filed at this term in Frantz v. Public Service Commission, 93 Pa.Super. 416, the question of the jurisdiction of the Commission to make the order depends entirely upon " whether or not appellant has been operating as a common carrier in the service complained of." No substantial issues of fact arise under the evidence and the order is based upon appellant's own testimony. After a careful reading of all the testimony we are satisfied that the material facts and the inferences reasonably deducible therefrom have been fairly summarized in the brief for the Commission substantially as follows:

Appellant is engaged in the business of transporting merchandise between Philadelphia and Allentown, Bethlehem and Easton. In this business, he used two five-ton trucks and one two and a half-ton truck. Each truck makes about three trips per week. Appellant started in this business in 1923. At that time he bought a truck and was hired by the Philadelphia and Lehigh Transportation Company. When that company went out of business, he began to operate independently. At that time, about December, 1923, he made written contracts with his shippers, five in number. The contracts were with the following persons: a printer in Allentown, covering shipments of paper from Philadelphia; an owner of stores in Allentown, Bethlehem and Easton, covering shipments of groceries, etc., from Philadelphia; a flour mill in Easton, covering shipments of flour to American Stores' warehouses in Philadelphia; an upholstering firm in Philadelphia, covering shipments of furniture from a store in Allentown; a paint company in Philadelphia, covering shipments of paint from a manufacturer in Easton.

These contracts have expired, and appellant does not now transport by virtue of them. He is now operating under what he claims are verbal contracts, described by him on cross examination as " understandings." He named some twenty firms with which he had such understandings, of which probably six were sugar or grocery brokers for other patrons. The exact number of his customers is not certain, as he named them from memory and has no record of them. His books show only the names of persons from whom he has received goods for shipment.

The nature of these contracts is illustrated by appellant's description of the manner of making them. A contract with a furniture dealer was made as follows:

" Q. When was that understanding made?

A. That understanding was made -- I don't remember the time, but I was talking to Mr. Speigel himself. Mr. Speigel said, 'You do my hauling until I give you notice to stop.

' Q. Does that cover all the hauling that he has or just what he offers you?

A. Just what he offers me. I don't know whether I do all his hauling."

A contract to carry matches thus: "

Q. The Ohio Match Company -- when did you make that agreement?

A. About three months ago, I guess.

Q. Was it as long as three months ago?

A. About two or three months, I think it is.

Q. It wasn't within a month?

A. I don't know, I really cannot remember when the Ohio Match Company called me up that I should haul some stuff up to Allentown.

Q. They called you up and asked you to haul some stuff?

A. Yes.

Q. Who was it called?

A. I don't know. Maybe it was a shipper.

Q. You agreed to haul it?

A. Yes."

Concerning another patron appellant testified:

" Q. What did he say about hauling; did he say how long he wanted you to haul, or anything of that kind?

A. He called me up that I should take some stuff up to Allentown. He asked me, 'Whenever we have something I will call you again; I want you to do the hauling for me.'"

Appellant has no advertised place of business. He has rented space on the loading platform of the Owl Transfer Company at 119 N. Front Street in Philadelphia and has made arrangements with some six sugar and grocery brokers, under which they telephone to him when they have purchased goods for delivery to wholesale grocers in Allentown, Bethlehem or Easton. He receives these goods either at the refinery warehouses or at his loading platform. He also has arrangements with the consignees who pay the freight. In addition to the transportation under orders from brokers, he carries under agreements with a vinegar company, a cheese manufacturer, a root beer concern, a hotel supply company and others. He also transports goods to Philadelphia from the three cities referred to. These shipments include paint, furniture and flour.

Appellant does not require that shipments be made regularly, or that they be of any definite weight. One of his customers ships almost every day, another twice a week, another " maybe a Saturday I am sent a case or two," for another " sometimes takes two or three months to get an order." The shipments vary in weight from a fixture for a soda fountain to a truck load of sugar.

The rates charged by appellant are uniform on similar classes of merchandise. His regular rate for sugar is 20 cents a hundred although one shipper pays 25 cents for a special service. The rate for canned goods, vinegar in barrels, etc., is 25 cents a hundred; on furniture frames it is $ 1.50 a hundred, etc. Shipments from various customers are carried on the same truck. He has " a truck going and coming each way, and any of these shippers can put goods on it." Appellant does not formally advertise or...