Reed, Smith, Shaw & McClay and Paul Winschel, Pittsburgh, Pa., for Pittsburgh & Lake Erie R. Co.
Henry M. Wick, Jr., M. B. Davidson, Samuel W. Pringle, John R. Bredin, Dalzell, McFall, Pringle & Bredin, Pittsburgh, for Pennsylvania R. Co.
John E. Fullerton, Asst. Counsel, Lloyd Benjamin, Acting Counsel, Harrisburg, for Public Utility Commission.
Jerome Solomon, Pittsburgh, for J. Kenny Transfer, Inc.
William C. O'Neil, Thorp, Reed & Armstrong, Pittsburgh, for Pittsburgh Coke & Chemical Co.
Before Rhodes, P. J., and Hirt Reno, Dithrich, Ross, Arnold and Gunther, JJ.
[ 170 Pa. Super. Page 413]
This is an appeal from the order of the Pennsylvania Public Utility Commission granting J. Kenny Transfer, Inc., the right to transport dry cement by motor truck, as a Class D Carrier, for Pittsburgh Coke and Chemical Company, from its plant on Neville Island, in Pittsburgh, to points within 175 miles of the limits of the City of Pittsburgh, and the return of refused, rejected, or damaged shipments. Applicant owns and operates 105 pieces of motorized equipment in the Allegheny County area under existing certificates. The ability of the applicant to render the proposed service is not questioned. The issues on this appeal relate to the public necessity for the certificate and to certain matters of procedure.
The original application of J. Kenny Transfer, Inc., requesting the additional right to transport cement
[ 170 Pa. Super. Page 414]
was filed on March 28, 1950. A simultaneous request for temporary authority to render the proposed service was denied by the Commission. Protests to the application and to the request for temporary authority were filed by twelve carriers, three being railroads and nine being motor carriers. Petition for modification of the order denying temporary authority was also refused. Hearings on the application were held in Pittsburgh during May, June, and September, 1950. Testimony was presented by three of the protestants -- Pittsburgh and Lake Erie Railroad Company, and the Pennsylvania Railroad Company (the present appellants), and DeBolt Transfer, a motor carrier. Three of the protesting motor carriers, W. J. Dillner Transfer Company, Moore-Flesher Hauling Company, and John Benkart & Sons presented no testimony in opposition to the application in view of a stipulation that these 'three protestants within their certificated rights, whatever they may be as construed by the Commission, are ready, able and willing to transport cement and mortar in bags at the present time and in so far as the movement of bulk cement is concerned, they are ready, willing and able to acquire such tank trailers as may be necessary to handle the bulk business of the supporting shipper, Pittsburgh Coke and Chemical Company.'
Following the hearings, at which J. Kenny Transfer, Inc., the applicant, called three witnesses, and three of the protestants presented testimony, the Commission on February 26, 1951, issued a short form order approving the application for a certificate of public convenience granting the additional right to transport, as a common carrier, cement for the shipper. Appeals were then taken to this Court. We returned the record to the Commission which, on September 24, 1951, issued in lieu of the order of February 26, 1951,
[ 170 Pa. Super. Page 415]
an order affirming its original order, approving the application and granting a certificate of public convenience to the applicant. Appellants in this Court are the Pittsburgh and Lake Erie ...