Kulp v. Pennsylvania Public Utility Commission ( 1943 )

RHODES, J., filed a dissenting opinion.

Argued April 28, 1943. In 1938, Pennsylvania Public Utility Commission issued a certificate to P.H. Gabel, under the name of Lansdale and New York Motor Express, authorizing him to transport property by truck as a common carrier between points in the Borough of Lansdale, Montgomery County, and all other points within 20 miles from the borough, excluding the city and county of Philadelphia, parts of which are within the area of the 20-mile radius. The field of operation extended to the Delaware River and was supplemented by interstate rights through New Jersey into the City of New York. On application of this carrier the limitation of the original certificate was removed on December 28, 1942, by order of the commission authorizing operation as a common carrier throughout the territory of the original certificate with the addition of the whole of the city and county of Philadelphia. The order was made over the protests of 18 competing certified carriers operating throughout the area, a number of them with large fleets of trucks, whose testimony at the hearings before the commission was to the effect that existing transportation facilities are more than adequate. This is another case (Cf. LeamanTransportation Corp. et al. v. Pa. P.U.C., 153 Pa. Super. 303, in which the scope of the order of the commission goes beyond the territorial limits of the proofs; it will be modified accordingly.

The appeal involves a densely populated metropolitan area, the seat of many shippers requiring truck transportation of raw materials and products of manufacture. The normal source or destination of much of this freight is the City of Philadelphia. By extending applicant's rights generally throughout the city and county of Philadelphia the character of the authorized service was changed and prolific sources of goods for transportation, from which applicant had been barred, were opened to him.

We are not concerned primarily with the effect of the order in increasing competition among common carriers within the area. That is a question largely for the commission. John Benkart Sons Company v. Pa. P.U.C., 137 Pa. Super. 13, 7 A.2d 588. Our inquiry is directed to whether there is substantial evidence to support the findings of fact and the order of the commission.Mod. Trans. Co. v. Pa. Pub. Util. Com. et al., 139 Pa. Super. 197, 12 A.2d 458. Absolute necessity for additional service is not the test. Arrow Carrier Corp. v. P.S.C., 120 Pa. Super. 570, 182 A. 711. "Accommodation" or "convenience" of the public are factors to be considered. § 203(a) Public Utility Law of May 28, 1937, P.L. 1053, 66 PS 1123. It is sufficient "to show that the existing service is not of a type or character which satisfies the public need and convenience and that the proposed service would tend to correct or substantially improve that condition": Mod. Trans. Co. v. Pa. Pub. Util. Com. et al., supra.

Fourteen shipper witnesses testified as to the need for additional service. Their testimony relates to six specific points on or near Bethlehem Pike, (U.S. Highway Route 309) viz: Quakertown, Telford, Hatfield, Lansdale, North Wales, Ambler, and in addition Doylestown and Oaks, two isolated points within the area. These witnesses recognized that there are other truck carriers available whose services have been satisfactory in many instances but they require additional service for one or more of the following reasons: the type of equipment adapted to heavy shipments of steel and iron is not always available; the route service of other carriers is unsatisfactory because of schedules which offer service only at inopportune times; route service of others is inadequate also because of the type and capacity of the equipment, and pick-up service is not dependable unless arranged for a day in advance; it is a convenience to deal with but one carrier for shipments throughout the area including the City of Philadelphia; there is an advantage in having a local carrier available as against dealing with a carrier through its office in Philadelphia; on occasion there is need for immediate delivery into Philadelphia of rush orders when facilities of other carriers are not available; in general these witnesses found the applicant the most dependable of all of the carriers serving the area. This testimony meets the standard of proof, within territorial limitations. What was said in Mod. Trans. Co. v. Pa. Pub. Util.Com. et al., supra, p. 203, is pertinent: "The public are interested in obtaining not only an economical but a dependable service. . . . . . It is the duty of the commission to adjust conflicting interests so that efficient service will be available. The proper adjustments are to be made by the commission, for it is to that body that the legislature has entrusted the duty of determining who and how many shall serve a given area. It requires proof of an unusual situation before we are warranted in interfering with the duties so entrusted to the commission."

We are mindful of the principle that the evidence must establish a public need and not merely a convenience to individual shippers. Perry Co. Tel. Tel. Co. v. Pub. Ser. Com.,265 Pa. 274, 108 A. 659; Beaver Val. Serv. Co. v. P.S.C., 122 Pa., Superior Ct. 221, 186 A. 304. But it is not an unreasonable inference that the advantages referred to by the witnesses will apply to other shippers in Oaks and Doylestown and that the need for additional facilities at all other points, referred to in the testimony, also extends generally along U.S. Highway Route 309 from Philadelphia to Quakertown.

The error in the order consists in assuming, without proof, that existing facilities are inadequate throughout the entire territory of the order. There are probably few areas anywhere which are better served with transportation facilities. Appellants state without contradiction that there are 87 cities, towns or boroughs within the distance of 20 miles of Lansdale with a population of 250 or more. From the testimony of a need as to some points it does not follow, in the absence of proof, that additional service is necessary for the accommodation or convenience of shippers generally throughout that area. The "desired flexibility in administrative procedure does not go as far as to justify orders without a basis in evidence having rational probative force": Consolidated EdisonCo. v. National L.R. Bd., 305 U.S. 197, 59 S. Ct. 206. There is no basis in the evidence for the exercise of administrative discretion except as above indicated. The burden was upon applicant to establish a public need for the facilities, which he offered, throughout the extended territory of the application and only insofar as this burden has been met may his certificate be amended enlarging his field of operation. To the extent that service is authorized beyond the territorial limits of the proofs the order is extravagant, capricious and arbitrary and not in conformity with law.

The order will be modified restricting the additional service to Oaks, Doylestown, and along U.S. Highway Route 309, including adjacent points referred to in this opinion. Costs to be paid by P.H. Gabel, intervening appellee.