Einhorn & Schachetel, Walter Schachtel, Philadelphia, for appellant.
John H. Maurer, District Attorney, Philadelphia, Jack F. Aschinger, Assistant Counsel, Charles E. Thomas, Counsel, Harrisburg, Penna. Public Utility Commission, for appellee.
Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.
[ 166 Pa. Super. Page 389]
Charles F. Hill, Jr., appeals from his conviction of having operated his motor vehicle as a common carrier within the Commonwealth of Pennsylvania without a certificate of public convenience or contract carrier permit, contrary to §§ 201(b) and 804 of the Public Utility Law.*fn1
Ontario Land Company, pier 179 North, Philadelphia, is a lumber terminal for vessels arriving from the west coast. Ward Pollock, an investigator for the Pennsylvania Public Utility Commission, received a complaint about a carrier about to engage in transportation of lumber from pier 179 North, to Slatington, Pennsylvania, without proper certification from the Commission. After checking the registration of appellant's vehicle and the operator's license of its driver, Pollock went to the office of the Ontario Land Company and informed appellant that the driver of the vehicle would be arrested if the lumber were hauled. Appellant asked whether the owner might not accept the arrest so that the delivery of the lumber to Slatington would not be delayed. Thereupon, appellant followed Pollock to a police station at 11th and Winter Streets, Philadelphia, and posted bond for hearing. He now appeals from his subsequent conviction.
The lumber transported by appellant was shipped from the west coast via the SS Elmer Sperry to Blanchard Lumber Company of Philadelphia, a wholesale dealer. Prior to unloading the vessel, a portion of the lumber
[ 166 Pa. Super. Page 390]
was sold by Blanchard Company to the Kern Lumber Company of Slatington, a retail dealer. Appellant was engaged and paid by Blanchard Lumber Company to make delivery of the purchased lumber to the Kern Company. Appellant, under its own bill of lading showing the shipment of lumber from pier 179 North, in Philadelphia, to the Kern Lumber Company at Slatington, transported the lumber on March 9, 1949, to the Kern Company. The lumber was receipted for by the driver of appellant's vehicle and a representative of the Kern Company.
George W. Lewis, Jr., traffic manager of Blanchard Lumber Company, a witness for appellant, testified that the lumber was originally consigned to Blanchard Lumber Company. John J. Gibbons, general manager of Ontario Land Company, stated that the SS Elmer Sperry arrived at pier 179 North on February 27, 1949; that more than 600,000 square feet of lumber were unloaded. Sidney R. Peters, an employe of Kern Lumber Company and a witness for the Commonwealth, stated that the lumber was purchased F.O.B. Slatington, and that the Kern Company paid the Blanchard Lumber Company the quoted price including transportation charges and such incidental charges as storage and insurance; that some of the lumber was ordered while in transit and another portion of lumber was ordered after the ship had docked. The pier is used by various wholesalers of lumber for storage and pick-ups. Lumber, after having been received by Ontario Land Company, is available at the yard upon presentation of a yard ticket by the interested party.
Appellant contends that (1) the transportation of the lumber by motor vehicle was interstate and therefore not within the jurisdiction of the Pennsylvania Public Utility Commission; and (2) the arrest was ...