Kulp v. Pa. P.U.C. , 153 Pa. Super. 379 ( 1943 )

The majority opinion has modified the order of the commission because, as it holds, the order¹ goes beyond the territorial limits of the proofs. If the commission is obliged to adhere literally to this pronouncement, as applied in the instant case, in the regulation of transportation by motor vehicles, it must have positive evidence of the effect that the granting or refusing of a certificate may have on the people in every square mile, or possibly less, of the territory sought to be served by an applicant. Such requirement is neither reasonable nor in harmony with the declared policy of the legislature "to regulate . . . . . . the service of common carriers by motor vehicle and forwarders in such manner as to recognize and preserve the inherent advantages of, and foster sound economic conditions in such service, and among such carriers and forwarders in the public interest; to promote safe, adequate, economical, and efficient service by common carriers by motor vehicle and forwarders, and just and reasonable rates therefor, without unjust discrimination, and unfair or destructive practices; to improve the relations between, and coordinate the service and regulation of, common carriers by motor vehicle, forwarders, and other carriers; to develop and preserve a safe highway transportation system properly adapted to the needs of the commerce of the Commonwealth of Pennsylvania and insure its availability between all points of production and markets of this Commonwealth": Section 801, art. 8, of the Public Utility Law, Act of May 28, 1937, P.L. 1053, 66 P. S. § 1301. In section 203, art. 2, of the Public Utility Law, 66 P. S. § 1123, it is also provided that the commission, in granting a certificate of public convenience, "shall find or determine that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public. . . . . ."

The result will be, as the commission says, to reduce the regulation of motor carriers to an exact science, to defeat the very aims of the legislature in regulating motor vehicles, to block the commission from taking that broad view of the motor carrier industry that the legislature has desired taken, to put an end to limited competition, and to give the existing carriers the status of monopolies.

In Horn's Motor Express, Inc., v. Pa. P.U.C., 148 Pa. Super. 485, 26 A.2d 346, we said that where the commission makes findings of fact after full compliance with the procedural requirements of the law, and its order is not in violation of constitutional rights, the sole inquiry of the appellate court is whether there is substantial evidence with rational probative force to support the findings. See, also, Alko Express Lines v.Pa. P.U.C., 152 Pa. Super. 27, 30 A.2d 440. An examination of the record will clearly disclose that the commission has made findings of fact after full compliance with the procedural requirements of the law, and that the applicant has met the burden of proof by showing that the existing service within the area is not of a type or character which satisfies the public need and convenience, and that the proposed service to and from Philadelphia would tend to correct or substantially improve that condition. The commission in its supplemental report and order affirming modification of applicant's certificate of public convenience said that "we do not believe it would be to the accommodation and convenience of the public to long continue the existing situation. We have eliminated these objectionable factors, not by interjecting a new carrier into the area, but by placing an existing carrier on a parity with those operating within the area. We believe this to be a proper adjustment of conflicting interests, making available a more efficient service which will result in an accommodation and convenience to the public; thus providing shippers within the area with a local carrier equipped with facilities for which they have a need, affording them an opportunity to fully utilize applicant's very satisfactory schedules of and arrangements for deliveries and pick-ups, and with certificated rights sufficient to render a complete service."

Fourteen shipper witnesses from widely separated parts of applicant's existing territory appeared and testified as to the need for granting applicant the right to enter the city and county of Philadelphia. They show a general necessity in the area served by applicant for such additional service to be rendered through the modification of applicant's certificated rights. Proof of such necessity or proof that the granting of the application will be for the convenience, accommodation, and advantage of the public generally and considered as a whole is sufficient. Beaver Valley Service Co. v. P.S.C. et al., 122 Pa. Super. 221,225, 186 A. 304 The testimony of these witnesses was, in my judgment adequate to support the finding of the commission "that the existing service and facilities are inadequate and that the approval of the proposed modification is necessary and proper for the service, accommodation, convenience or safety of the public." It would be impossible to guess under the theory of the majority opinion what proof would be necessary to sustain the findings and order of the commission in the present case or any similar case. On the evidence, which I think supports the findings and order of the commission, it was proper for the commission to exercise its administrative discretion in accordance with the powers delegated to it by the legislature. See Modern Transfer Co., Inc., v. Pa. P.U.C. et al., 139 Pa. Super. 197,202, 12 A.2d 458.

I would affirm the order with the limitation of additional service to and from Philadelphia and applicant's original certificated area, as this appears to have been the extent of the additional rights contemplated and at issue.

¹ "That the rights contained in the report, order, and certificate of public convenience issued in this proceeding, under date of March 14, 1938, which reads as follows: `To transport, as a Class D carrier, property between points in the Borough of Lansdale, Montgomery County, and within twenty (20) miles, by the usually traveled highways, of the limits of said borough, excluding the City and County of Philadelphia,' be and is hereby modified and amended to read as follows: `To transport, as a Class D carrier, property between points in the Borough of Lansdale, Montgomery County, and within twenty (20) miles, by the usually traveled highways, of the limits of said borough, including the City and County of Philadelphia.'"