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COMMONWEALTH v. KOZAK (06/11/57)

June 11, 1957

COMMONWEALTH
v.
KOZAK, APPELLANT.



Appeal, No. 9, Feb. T., 1957, from judgment of Court of Quarter Sessions of Lackawanna County, May T., 1956, No. 431, in case of Commonwealth of Pennsylvania v. Joseph Kozak. Judgment affirmed.

COUNSEL

Richard S. Campagna, for appellant.

Carlon M. O'Malley, District Attorney, for appellee.

Paul Ribner, Assistant Counsel, with him Thomas M. Kerrigan, Acting Counsel, for Pennsylvania Public Utility Commission.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Watkins

[ 184 Pa. Super. Page 289]

OPINION BY WATKINS, J.

Joseph Kozak was engaged in hauling culm from the Kehoe-Berge area in Luzerne County, to the Adams Coal Company washery located in Lackawanna County. Both the culm and the washery were owned by the Adams Coal Company. The hauling was done by a dump truck owned and operated by the defendant, without a permit, certificate of public convenience or license issued by the Public Utility Commission of the Commonwealth of Pennsylvania, authorizing the service performed. The defendant was operating under a contract with the Adams Coal Company, and hauling the culm for $3.27 a load, more or less, the price fixed at the discretion of the owner coal company.

The defendant was charged on May 1, 1956 with violating Section 1311 of the Public Utility Law, as amended, May 29, 1951, P.L. 494, section 1, 66 PS § 1501, in operating as a motor carrier for compensation, without a certificate of public convenience, permit or license authorizing the service performed, and was summarily convicted in an alderman's court in the City of Scranton. The defendant took an appeal under special allowance to the Court of Quarter Sessions of Lackawanna County, and after hearing on the appeal, on August 1, 1956 the appeal was dismissed. From this action of the court below this appeal was taken.

The question of whether the defendant is a contract carrier or common carrier is not before this Court. The

[ 184 Pa. Super. Page 290]

    only question raised on appeal is whether culm or coal silt comes under the exception contained in Section 2 of the Public Utility Law defining common or contract carriers. 66 PS § 1102, Pars. 6 (d) & 7 (e). In par. 6, the following appears: "but shall not include ... (d) any person or corporation who or which uses, or furnishes for use, dump trucks for the transportation of ashes, rubbish, excavated and road construction materials." In par. 7, the following appears: "but shall not include ... (e) any person or corporation who or which uses, or furnishes for use, dump trucks for the transportation of ashes, rubbish, excavated or road construction materials."

Throughout the record the words "silt" and "culm" are used to describe the material being hauled. The technical definition of silt would be mud or fine earth deposited from running or standing water and is more correctly used in the coal business to describe the deposit left in streams or settling dams. "Coal silt" is often used ...


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