Graves Trucking, Inc. v. Public Service Com'n of Indiana

• Decision Date: 24 March 1986
• Docket Number: No. 2-185A2,2-185A2
• Citation: 490 N.E.2d 365
• Parties: GRAVES TRUCKING, INC., Statewide Trucking, Inc., and Klink Trucking, Inc., Appellants (Protestants Below), v. PUBLIC SERVICE COMMISSION OF INDIANA, State of Indiana, and Black Beauty Trucking Co., Inc., Appellees.
• Court: Indiana Appellate Court

Page 365

490 N.E.2d 365

GRAVES TRUCKING, INC., Statewide Trucking, Inc., and Klink Trucking, Inc., Appellants (Protestants Below), v. PUBLIC SERVICE COMMISSION OF INDIANA, State of Indiana, and Black Beauty Trucking Co., Inc., Appellees.

No. 2-185A2.

Court of Appeals of Indiana Third District.

March 24, 1986.

Robert B. Hebert, Miller, Faires, Hebert & Woddell, P.C., Indianapolis, for appellants.

Alki E. Scopelitis, Lynne D. Lidke, Scopelitis & Garvin, Indianapolis, for appellees.

GARRARD, Judge.

This appeal is from a Public Service Commission of Indiana (Commission) decision issuing a certificate of public convenience and necessity (certificate) authorizing Black Beauty Trucking, Inc. (Black Beauty) to operate as a common carrier.

Black Beauty initially sought a certificate authorizing the transportation of bulk commodities in dump trucks throughout all of Indiana. Nineteen (19) other carriers filed protests in response to Black Beauty's application. A public hearing before an administrative law judge extending over several days was concluded on April 12, 1984, after which four (4) of the protesting carriers withdrew their opposition. Black Beauty subsequently filed a motion with the Commission to restrictively amend its application on October 2, 1984. After the restrictive amendment five (5) more carriers withdrew their opposition to Black Beauty's application.

The administrative law judge then submitted his report and recommendation to the Commission supporting approval of the restricted application. Of the remaining, protesting carriers Graves Trucking, Inc. Statewide Trucking, Inc. and Klink Trucking, Inc. (collectively referred to as Protestants) were the only carriers formally objecting to the report and recommendation. Protestants submitted exceptions and a supporting brief to the Commission. After Black Beauty submitted a response to the exceptions, the Commission approved the application on January 3, 1985, granting Black Beauty authority as follows:

"IT IS THEREFORE ORDERED BY THE PUBLIC SERVICE COMMISSION OF INDIANA THAT:

1. A Certificate of Public Convenience and Necessity be issued to Black Beauty Trucking, P.O. Box 312, Evansville, Indiana 47702, to operate motor vehicles as a common carrier of property, intrastate, subject to the terms, conditions and limitations hereafter set out, as follows, to-wit:

Commodities in bulk, in dump vehicles,

Between points in Indiana.

(1) RESTRICTED against the transportation of cement, scrap metal, pig iron, coke, alloys and salt.

(2) RESTRICTED against the transportation of fertilizer from Frichton, Delphi, Mt. Vernon (Posey County) and from the facilities of Kaiser Industrial Chemicals at Burns Harbor.

(3) RESTRICTED against any transportation having both an origin and destination within:

(a) Lake and Porter Counties;

(b) Boone, Hamilton, Hancock, Hendricks, Johnson, Marion, Morgan and Shelby Counties;

(c) Miami, Wabash, Howard, Grant, Cass and Fulton Counties."

Protestants now seek appellate review of the Commission's order contending in their single assignment of error that the order is contrary to law. Under IC 8-1-3-1, which discusses appellate review of Indiana Public Service Commission decisions, an assignment of error that a commission decision is contrary to law presents for appellate review "both the sufficiency of the facts found to sustain the decision, ruling or order, and the sufficiency of the evidence to sustain the finding of facts upon which it was entered." See also Coastal Tank Lines, Inc. v. Propane Transport (1981), Ind.App., 416 N.E.2d 440. This "two-tiered" standard of review was analyzed by Judge Sullivan in Board of Directors for Utilities v. Office of Utility Consumer Counselor (1985), Ind.App., 473 N.E.2d 1043, wherein it was determined:

"The basic findings, however, must provide the underlying reasons from which the ultimate findings or conclusions will reasonably flow. As stated by the Indiana Supreme Court, '[the] findings of basic fact must reveal the [Commission's] analysis of the evidence and its determination therefrom regarding the various specific issues of fact which bear on the particular claim.' Perez [v. United States Steel Corp.], supra [ (1981), Ind.], 426 N.E.2d at 33. A finding is insufficient if in fact it is merely a summary or recitation of the evidence which does not manifest the Commission's expertise in analyzing such evidence. Talas v. Correct Piping Co. (1981), Ind., 426 N.E.2d 26, 28.

At the second level of review, the Court determines whether the Commission's basic findings of fact are supported by substantial evidence of record. Capital Improvement Board v. Public Service Commission (2d Dist.1978), 176 Ind.App. 240, 245, 375 N.E.2d 616, 622. In this respect, the court is not empowered to substitute its judgment for that of the Commission and where a reasonably sound basis of evidentiary support exists, the Commission's findings will be upheld. L.S. Ayres & Co. [v. Indianapolis Power & Light Co.], supra [ (2d Dist.1976) ], 169 Ind.App. at 664, 351 N.E.2d at 823."

473 N.E.2d at 1047. Guided by IC 8-2-7-15(b) and this standard of review, we now examine the Commission's decision and its evidentiary foundation.

IC 8-2-7-15(b) requires motor carriers applying for a certificate of public convenience and necessity to establish by a preponderance of the evidence: (1) "that public convenience and necessity requires the proposed operation" and (2) "that the proposed operation will not unreasonably impair the existing public service of any authorized common carrier...." We have indicated many times that the public convenience and necessity determination must be left to the informed discretion of the Commission as it necessarily depends upon the facts and circumstances of each given case. Ram Broadcasting of Ind. v. MCI Airsignal (1985), Ind.App., 484 N.E.2d 26, 30; Coastal Tank Lines, Inc. v. Propane Transport (1981), Ind.App., 416 N.E.2d 440, 443; Jack Gray Transport, Inc. v. Public Service Comm. (1978), 177 Ind.App. 576, 380 N.E.2d 1250, 1254; V.I.P. Limousine Service, Inc. v. Herider-Sinders, Inc. (1976), 171 Ind.App. 109, 355 N.E.2d 441, 444-6.

Protestants' challenge of the Commission's decision focuses on the public convenience and necessity component of Black Beauty's burden of proof. Protestants contend that there is no substantial evidence in the record to justify the territorial scope of Black Beauty's certificate, the commodity scope of the certificate or the fitness, willingness, or ability of Black Beauty to provide the proposed service. The Commission's findings regarding these three areas, while extensive, merit repetition here:

"Turning to the evidence, the detailed evidence submitted by Applicant convincingly demonstrates that Applicant is capable of providing the proposed service. Applicant operates a large dump vehicle fleet and has invested substantially over the past few years in increasing the size of that fleet in order to meet the needs of its customers. Further, Applicant's past service demonstrated that it has provided extensive dry bulk service throughout much of the state, including movements as far north as Cass County as far east as Wayne County. Applicant's detailed traffic study, submitted as Appendix H to Applicant's Exhibit 1, shows that Applicant, pursuant to its past authorities, already is competing throughout much of the state with respect to the transportation of several dry bulk commodities, including coal, stone, sand, gravel, lime and fertilizer, as well as exempt commodities. Protestants, especially those remaining in the case, made no real effort to show that Applicant was unable to provide the proposed service.

At the very start of this proceeding, Applicant made clear its intention to establish public convenience and necessity by submitting its own evidence, as well as shipper support evidence. Applicant's 1983 operations had its equipment moving thousands of shipments of coal from points located in the southern and southwestern part of the state to numerous other counties (Applicant's Exhibit 1, Appendix H). In comparison, Applicant had much fewer return movements back to its base of operations in southwestern Indiana, loaded; therefore, substantial deadhead mileage was incurred. (Applicant's Exhibit 1, Exhibit H). The primary purpose of the application is to reduce the number of empty return movements, thereby increasing the efficiency of Applicant's operations. Applicant proposes to pass on this cost saving by filing with the Commission a rate that will enable the shipping public to take advantage of two-way loaded movements (Applicant's Exhibit 1, Appendix J).

It is the declared policy of the Act to promote 'economical and efficient service and foster sound and economic conditions....' I.C. 8-2-7-5. Moreover, public need must be considered in an economic and social sense. In Re Allen d/b/a Indiana Scenic Bus Line Tours, No. 2367-A, 3 (1946). The Commission finds Applicant's goal to obtain two-way movements to be feasible and, because of the lower rates to be offered, in the public interest. The Commission points out that the mere promise by an applicant of a lower rate may not be probative in another application proceeding, but Applicant established through its evidence and the evidence of the supporting shippers that the increased capability of Applicant to provide the proposed service in the application territory will be in the public interest. That showing was made through Applicant's witness' testimony and the traffic study and tariff proposal submitted, which evidence was consistent with the related testimony of the supporting shippers.

The evidence submitted by the supporting shippers also supported the amended commodity scope. The shipper evidence involved a wide assortment of dry bulk commodities, including coal, sand, gravel, agricultural limestone and stone. Applicant need not submit evidence as to all types of bulk...