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MOTOR FREIGHT EXPRESS v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (NO. 2). (01/17/56)

January 17, 1956

MOTOR FREIGHT EXPRESS, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION (NO. 2).



Appeal, No. 65, Oct. T., 1954, from order of Pennsylvania Public Utility Commission, Docket No. A. 76842, in case of Motor Freight Express v. Pennsylvania Public Utility Commission and J. W. Peterson, John E. Murphy and Walter E. Leonard, trading as Turnpike Express. Order affirmed.

COUNSEL

James W. Hagar, with him McNees, Wallace & Nurick, for appellants.

John E. Fullerton, Assistant Counsel, with him William A. Donaher, Assistant Counsel and Thomas M. Kerrigan, Acting Counsel, for Public Utility Commission, appellee.

Joseph M. Loughran, for applicant, intervening appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, and Ervin, JJ. (woodside, J., absent).

Author: Rhodes

[ 180 Pa. Super. Page 309]

OPINION BY RHODES, P.J.

This is an appeal by Motor Freight Express from an order of the Pennsylvania Public Utility Commission of December 13, 1954, directing the issuance of a certificate of public convenience to J. W. Peterson, John E. Murphy, and Walter E. Leonard, co-partners, trading and doing business as Turnpike Express, evidencing the commission's approval of the right to operate motor vehicles as a common carrier, for the transportation of property as a class D carrier, with certain exclusions from points in the Counties of Allegheny and Westmoreland to points in the City of Philadelphia and within thirty-five airline miles of the limits thereof and vice versa.*fn1

The application of Turnpike Express was filed with the commission on January 9, 1951. The application was protested by the Pennsylvania Railroad Company and twelve certificated motor carriers including Motor Freight Express, Lancaster Transportation Company, Kramer Brothers Freight Lines, Inc., Philadelphia-Pittsburgh Carriers, Inc., and Highway Express Lines, Inc. The commission held numerous hearings, and on November 16, 1953, issued a short form order granting applicant certain rights to haul property as a class D carrier which were restated in the order of December 13, 1954. Appeals were taken to this Court by the five

[ 180 Pa. Super. Page 310]

    aforementioned motor carriers. Concurrently appellants filed petitions for supersedeas, which, after hearing, were denied on January 5, 1954. Thereafter all appellants except Motor Freight Express discontinued their appeals. Turnpike Express was permitted to intervene and was added as a party appellee. On January 5, 1954, we granted the petition of the commission for the remission of the record for further study and consideration and to make specific findings of fact. On December 13, 1954, the commission issued, in lieu of its order of November 16, 1953, the order from which this appeal has been taken.

Appellant contends that in considering Turnpike's application the commission had before it a secret report and recommendation, submitted by the staff of the commission, summarizing the evidence. No such report was made a part of the record. Appellant claims that no such report was made available to it, and that, since it was given no opportunity to point out any erroneous findings or conclusions contained therein, this procedure violates the rudiments of fair play and the principle of exclusiveness of the record and constitutes a denial of due process. This matter was never presented to the commission and is not now before us; it was not assigned as error in the appeal petition. A question such as this, not relating to jurisdiction, which has not been raised before the commission, or considered by it, cannot be raised by appellant on appeal. Middletown Borough v. Pennsylvania Public Utility Commission, 143 Pa. Superior Ct. 444, 447, 17 A.2d 904. See, also, W. J. Dillner Transfer Co. v. Pennsylvania Public Utility Commission (No. 2), 175 Pa. Superior Ct. 472, 481, 107 A.2d 164.

Appellant's second contention is that the findings and order of the commission granting the application are not supported ...


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