Hostetter v. Pennsylvania Public Utility Commission

• Decision Date: 11 December 1946
• Citation: 160 Pa.Super. 94,49 A.2d 862
• Parties: Hostetter et al., Appellants, v. Pennsylvania Public Utility Commission et al
• Court: Pennsylvania Superior Court

49 A.2d 862

160 Pa.Super. 94

Hostetter et al., Appellants, v. Pennsylvania Public Utility Commission et al

Superior Court of Pennsylvania

December 11, 1946

Argued November 13, 1946.

Appeal, No. 71, Oct. T., 1945, from order of Pennsylvania Public Utility Commission, Application Docket No. 22955-F 33 in case of George F. Hostetter, trading as Keystone Express and Storage Company et al. v. The Pennsylvania Public Utility Commission et al.

Proceedings before Public Utility Commission upon petition of protesting carrier for reconsideration and clarification of order approving the transfer of existing rights.

Order entered refusing prayer of petition. Protesting carrier appealed.

Harold S. Shertz, with him Shertz, Barnes & Shertz and W. G. Johnstone, Jr., for appellants.

Gabriel D. Weiss, with him Vincent P. McDevitt and James H. Duff, Attorney General, for Public Utility Commission.

E Russell Shockley, with him Schnader, Kenworthey Segal & Lewis and Paul A. Mueller, for intervening appellees.

Baldrige P. J., Rhodes, Hirt, Reno, Dithrich, Ross and Arnold, JJ.

OPINION

RENO, J.

This appeal brought up for review an order of the Public Utility Commission dated January 29, 1945, granting a certificate of public convenience to Motor Freight Express, Inc., (hereinafter called "Motor Freight"), evidencing its approval of the acquisition by Motor Freight of the certificated rights and certain equipment of Conestoga Transportation Company (hereinafter called "Conestoga"). The appellant operates Keystone Express and Storage Company (hereinafter called "Keystone"), and it and the intervening appellant, Lancaster Transportation Company, render motor freight service under similar certificates in the same general territory. Conestoga and Motor Freight are intervening appellees.

After the appeal was taken, upon the commission's petition, the record was remanded so that it might consider a petition filed with it by York Motor Express Company (hereinafter called "York Motor"), another carrier operating in the same territory, seeking a reconsideration and clarification of the initial order. After a hearing the commission denied the petition. York Motor did not appeal, and is not a party in this court, but the record of the hearing upon that petition is part of the record before us.

Prior to the institution of these proceedings, Conestoga's certificate authorized it, inter alia, to transport freight by motor vehicles between points in the city of Lancaster, between that city and Lancaster County points, and in a portion of upper Chester County. It was also authorized to interchange freight at Lancaster with other carriers, including Motor Freight. Motor Freight was authorized to transport freight over designated routes between Harrisburg, Philadelphia, Lancaster, Reading, Pottsville, York and Hanover, and intermediate points on the routes. It had interchange rights at Lancaster with Conestoga.

The privilege of interchange allows a carrier to accept freight originating at points included in its certificate destined for delivery beyond its territory and to carry it to the interchange station where it is transferred to another carrier which delivers it to the destination in the territory embraced in the latter's certificate.

The joint application of Motor Freight and Conestoga sought an order (a) transferring Conestoga's existing certificated rights to Motor Freight, and (b) the additional right to Motor Freight to coordinate, merge and consolidate Motor Freight's existing rights with those acquired from Conestoga, including the right to render continuous and through service between points covered under Motor Freight's existing certificate and those acquired from Conestoga. The order of the commission approved the transfer of Conestoga's existing rights to Motor Freight, but denied the additional rights sought by Motor Freight. The effect of the order will be clarified by our further discussion.

I. The Public Utility Law of May 28, 1937, P. L. 1053, § 202, 66 PS § 1122, provides: "Upon approval of the commission, evidenced by its certificate of public convenience . . . and not otherwise, it shall be lawful: . . . (c) For any public utility to begin the exercise of any additional right, power, franchise, or privilege. (d) For any public utility to dissolve, or to abandon or surrender, in whole or in part, any service, right, power, franchise, or privilege. (e) For any public utility, . . . to acquire from, or to transfer to, any person or corporation, . . . by any method or device whatsoever, . . . the title to, or the possession or use of, any tangible or intangible property used or useful in the public service."

Under § 203, 66 PS § 1123, the commission may issue a certificate of public convenience "only if and when the commission shall find or determine that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public".

At this point, it should be observed that, under § 1107, 66 PS § 1437, review upon appeal is limited, and: "The order of the commission shall not be vacated or set aside, either in whole or in part, except for error of law or lack of evidence to support the finding, determination, or order of the commission, or violation of constitutional rights."

When we discover that an order is supported by substantial evidence we do not, in this class of cases, examine the wisdom of the action of the commission. Unless the order is so capricious, arbitrary or unreasonable as to amount to an error of law, we do not disturb the commission's conclusion. Horn's Motor Express, Inc., v. Pa. P. U. C., 148 Pa.Super. 485, 26 A.2d 346; Modern Transfer Co. v. Pa. P. U. C., 139 Pa.Super. 197, 12 A.2d 458; Alko Express Lines v. Pa. P. U. C., 152 Pa.Super. 27, 30 A.2d 440.

II....