SRC Holdings, LLC v. Pub. Serv. Comm'n of W. Va.

• Decision Date: 02 November 2021
• Docket Number: No. 21-0233,21-0233
• Citation: 245 W.Va. 711,865 S.E.2d 453
• Parties: SRC HOLDINGS, LLC, Formerly Known as Williams Holdings, LLC, doing business as Williams Transport, Petitioner v. The PUBLIC SERVICE COMMISSION OF WEST VIRGINIA; Donald R. Abner, doing business as Ambassador Limousine and Taxi Service ; and Classic Limousine Service, Inc., Respondents
• Court: West Virginia Supreme Court

245 W.Va. 711

865 S.E.2d 453

SRC HOLDINGS, LLC, Formerly Known as Williams Holdings, LLC, doing business as Williams Transport, Petitioner

v.The PUBLIC SERVICE COMMISSION OF WEST VIRGINIA; Donald R. Abner, doing business as Ambassador Limousine and Taxi Service ; and Classic Limousine Service, Inc., Respondents

No. 21-0233

Supreme Court of Appeals of West Virginia.

Submitted: September 15, 2021

Filed: November 2, 2021

Michael W. Carey, David R. Pogue, Carey, Douglas, Kessler & Ruby, PLLC, Charleston, West Virginia, Attorneys for the Petitioner, Williams Transport.

Jessica M. Lane, General Counsel, Public Service Commission of West Virginia, Charleston, West Virginia, Attorney for the Respondent, Public Service Commission of West Virginia

Jared C. Underwood, Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Beckley, West Virginia, Attorney for the Respondents, Donald R. Abner, doing business as Ambassador Limousine and Taxi Service, and Classic Limousine Service, Inc.

Jenkins, Chief Justice:

The petitioner herein, SRC Holdings, LLC, formerly known as Williams Holdings, LLC, doing business as Williams Transport ("Williams" or "Williams Transport"), appeals from an order entered February 17, 2021,¹ by the Public Service Commission of West Virginia ("PSC"). By that order, the PSC approved the application of one of the respondents herein, Ambassador Limousine and Taxi Service ("Ambassador"), to transfer the common motor carrier certificate held by the other respondent herein, Classic Limousine Service, Inc. ("Classic"), to Ambassador. On appeal to this Court, Williams argues that the PSC erred by approving the certificate transfer. The respondents herein, the PSC, Ambassador, and Classic, urge this Court to uphold the certificate transfer. Upon a review of the parties’ arguments and briefs, the record designated for appellate consideration, and the pertinent authorities, we conclude that the PSC did not err by permitting Classic to transfer its common motor carrier certificate to Ambassador. Accordingly, we affirm the PSC's February 17, 2021 order.

I.FACTS AND PROCEDURAL HISTORY

This appeal arises from Ambassador's application to transfer Classic's common motor carrier certificate to Ambassador. Prior to the proposed certificate transfer, Ambassador possessed three motor carrier certificates, which authorized it to operate in four West Virginia counties: Fayette, Greenbrier, Raleigh, and Summers. Classic, who holds the common motor carrier certificate sought to be transferred, is a smaller operation whose primary focus is to provide transportation for customers of its two restaurants in Raleigh County. Nevertheless, Classic also transports customers within the other eight counties authorized by the subject motor carrier certificate; in total, Classic's certificate authorizes it to operate as a motor carrier in nine West Virginia counties: Boone, Fayette, McDowell, Mercer, Monroe, Nicholas, Raleigh, Summers, and Wyoming.

Williams also has motor carrier certificates authorizing it to transport passengers in several West Virginia counties—Boone, Fayette, Lincoln, Logan, Raleigh, Summers, and Wayne—although it operates primarily in Boone and Logan Counties. Objecting to the transfer of Classic's common motor carrier certificate to Ambassador, Williams claimed that, because Classic provides minimal transportation services in all counties in its territory except for Raleigh County, Classic's certificate has become geographically dormant as to the remaining counties for which it is certificated. Williams also argued that Classic's certificate has become operationally dormant as to those customers who Classic does not regularly transport, such as railroad employees. Finally, Williams complained that allowing Ambassador to provide transportation services in these areas, both geographically and operationally, will amount to devastating competition to Williams. By order entered February 17, 2021, the PSC approved Ambassador's application and allowed Classic to transfer its common motor carrier certificate to Ambassador. This appeal by Williams followed.

II.STANDARD OF REVIEW

The instant proceeding is before the Court on appeal from a decision of the PSC. Our review of PSC rulings is guided by the following standard:

" ‘The principle is well established by the decisions of this Court that an 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. Public Service Commission , 143 W. Va. 33, 99 S.E.2d 1 (1957)." Syl. Pt. 5, Boggs v. Pub. Serv. Comm'n , 154 W. Va. 146, 174 S.E.2d 331 (1970).

Syl. pt. 1, Sierra Club v. Pub. Serv. Comm'n of W. Va. , 241 W. Va. 600, 827 S.E.2d 224 (2019). See also Syl. pt. 2, Monongahela Power Co. v. The Pub. Serv. Comm'n of W. Va. , 166 W. Va. 423, 276 S.E.2d 179 (1981) ("In reviewing a Public Service Commission order, we will first determine whether the Commission's order, viewed in light of the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. We will examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Finally, we will determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The [C]ourt's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors."). In view of this standard, we proceed to consider the parties’ arguments.

III.DISCUSSION

On appeal to this Court, Williams reasserts the issues it raised during its objection to the certificate transfer before the PSC: (1) Classic's limited use of its common motor carrier certificate has rendered it both geographically and operationally dormant making it nontransferable, and (2) Ambassador's proposed use of Classic's certificate essentially will create new competition in the same territory that Williams currently services.

The PSC certificate at issue in this case allows the holder to operate as a common motor carrier in the State of West Virginia. Pursuant to West Virginia Code section 24A-1-2(2) (eff. 2000),²

"[c]ommon carrier by motor vehicle" means any person who undertakes, whether directly or by lease or any other arrangement, to transport passengers or property, or any class or classes of property, for the general public over the highways of this state by motor vehicles for hire, whether over regular or irregular routes, including such motor vehicle operations of carriers by rail, water or air and of express or forwarding agencies, and leased or rented motor vehicles, with or without drivers[.]

Operation as a common motor carrier in West Virginia requires the issuance of a certificate by the PSC:

No common carrier by motor vehicle shall operate any motor facility for transportation of either persons or property for hire on any public highway in this state except in accordance with the provisions of this chapter, and no person, after January one, one thousand nine hundred forty, shall, at the same time, hold under this chapter a certificate as a common carrier and a permit as a contract carrier authorizing operations for the transportation of property by motor vehicles over the same route or within the same territory unless for good cause shown and the commission determines that such certificate and permit may be held consistent with the public interest and the policy stated in section one, article one of this chapter.

W. Va. Code § 24A-2-2 (eff. 1939). See also W. Va. Code § 24A-2-5(a) (eff. 1980)³ ("It shall be unlawful for any common carrier by motor vehicle to operate within this state without first having obtained from the commission a certificate of convenience and necessity."). Similarly, PSC approval also is required to transfer a motor carrier certificate from one carrier to another: "No certificate issued under this chapter shall be assigned or otherwise transferred without the approval of the commission." W. Va. Code § 24A-2-5(c).⁴

From these statutes, it is apparent that determining whether a certificate should be transferred rests within the discretion of the PSC. We previously have explained what considerations are and are not relevant to this decision. In regard to irrelevant factors, we have held that

[t]he transfer of an existing certificate of convenience and necessity for a common carrier by motor vehicle is controlled by W. Va. Code, 24A-2-5(c) which states: "No certificate issued under this chapter shall be assigned or otherwise transferred without the approval of the commission." Subsection (c) does not contain any language requiring a showing that the public convenience and necessity be served by the transfer. We conclude that the transfer of such certificate does not depend upon a showing that the public convenience and necessity will be served.

Syl. pt. 1, Chabut v. Pub. Serv. Comm'n of W. Va. , 179 W. Va. 111, 365 S.E.2d 391 (1987). While a showing of public convenience and necessity is not necessary to transfer a common motor carrier certificate, two other factors are required to be satisfied: (1) the transferee's ability to provide the certificated service and (2) the certificate's continued viability due to lack of dormancy.

First, "[t]he chief inquiry at a transfer hearing is the ability of the proposed new certificate holder to carry on the business." Syl. pt. 2, id. This analysis requires a consideration of whether the...