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HUTCHISON v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (01/12/51)

January 12, 1951

HUTCHISON
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION



COUNSEL

James L. Jack, Jr., R. Carlyle Fee, Indiana, for appellant.

Clarence M. Freedman, Asst. Counsel, Charles E. Thomas, Counsel, G. S. Parnell, Intervenor, all of Harrisburg, for appellee.

Before Hirt, Acting P. J., and Reno, Dithrich, Ross, Arnold and Gunther, JJ.

Author: Gunther

[ 168 Pa. Super. Page 321]

GUNTHER, Judge.

Alex D. Hutchison, trading as Hutchison Bus Lines, appeals from an order of the Public Utility Commission granting a certificate of public convenience to Ralph J. Moyer and complains that the order of the Commission with reference to the necessity for the proposed group and party service of Ralph J. Moyer is not supported by substantial evidence with rational, probative force.

The scope of our review is set forth in Section 1107 of the Public Utility Law, Act of 1937, P.L. 1053, Art. XI, section 1107, as amended by the Act of 1941, P.L. 267, 66 P.S. § 1437, which provides in part: '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'. The pertinent findings of the Commission were as follows: 'After full consideration of the record it appears that certain of the proposed service is necessary for the accommodation and convenience of the public. * * * It is clear from the record that substantially all of the enumerated groups are doing without the transportation they should like to have because they do not feel that under present conditions it can be properly rendered to them by the protestant. * * * it therefore appears that the existing service is not of a type or character which satisfies the public need and that the proposed service would tend to correct or substantially improve that condition'. Our sole inquiry, therefore, is whether there was 'substantial evidence with rational probative force supporting the findings'. Horn's Motor Express Inc. v. Pennsylvania Public Utility Commission, 148 Pa. Super. 485, 487, 26 A.2d 346, 348, and cases there cited. We are not permitted to exercise our independent judgment, nor to weigh conflicting evidence. Ryan v.

[ 168 Pa. Super. Page 322]

Pennsylvania Public Utility Commission, 143 Pa. Super. 517, 17 A.2d 637. Nor may the Court inquire into the wisdom of acts resulting from an exercise of administrative discretion. Particularly is this true as regards matters relating to the nature and extend of competition, if any, to be allowed within a given territory. Byham v. Pennsylvania Public Utility Commission, 165 Pa. Super. 253, 257, 67 A.2d 626.

Ralph J. Moyer filed his application for a certificate of public convenience to operate motor vehicles as a common carrier for the transportation of persons in groups and parties upon excursions, tours, and sight-seeing trips originating at East Wheatfield Township, West Wheatfield Township, Bolivar Borough, and Fairfield Township. Appellant filed its protest on the ground that the rights prayed for 'are now certificated points of origin of the protestant's regularly issued and presently existing group and party certificate'. After hearing, the Commission, by order dated March 20, 1950, granted Moyer the right to transport as a common carrier groups and parties of persons from West Wheatfield Township and Bolivar Borough to points within 50 miles from the point of origin. Appellant then appealed to the Superior Court and this Court, by order dated July 28, 1950, remitted the record to enable the Commission to make specific findings of fact in sufficient detail to enable this Court to determine the controverted questions. That was done and the Commission, by order dated August 21, 1950, reaffirmed the prior grant of the certificate. From this order of August 21, 1950, Hutchison Bus Lines has taken this appeal.

The applicant testified that he presently owns a bus which he uses in the transportation of school children in West Wheatfield Township; that he has received numerous requests from various organizations for the service for which he desired a certificate, including

[ 168 Pa. Super. Page 323]

    among others the Bolivar Volunteer Fire Company, Bolivar School, Methodist Church in Bolivar, the Evangelical United Brethren Church in West Wheatfield Township, Veterans of Foreign Wars, Veterans of Foreign Wars ...


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