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FURST ET AL. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (08/27/57)

August 27, 1957

FURST ET AL., APPELLANTS,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeal, No. 30, March T., 1952, from order of Pennsylvania Public Utility Commission, January 21, 1952, No. A.66633, F. 4, in case of Alfred J. Furst et al. v. Pennsylvania Public Utility Commission et al. Order affirmed.

COUNSEL

James H. Booser, with him Robert L. Franke, James W. Hagar, and McNees, Wallace & Nurick, for appellants.

William S. Livengood, Jr., with him S. Cober Braucher, Stanley G. Stroup, and Livengood, Braucher and Stroup, for intervening appellees, applicants.

William A. Donaher, Assistant Counsel, and Thomas M. Kerrigan, Acting Counsel, for Public Utility Commission.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Ervin

[ 184 Pa. Super. Page 331]

OPINION BY ERVIN, J.

This is an appeal by a protestant motor carrier from an order of the Public Utility Commission dated January 21, 1952, granting to Pwell Betts and Willis I. Betts, co-partners, trading and doing business as Betts Transfer, "the right to operate motor vehicles as a common carrier as follows: To transport, as a Class D carrier, property (excluding household furniture, articles of special value, heavy machinery, or property requiring special equipment to handle, commodities in bulk in tank trucks, and property for the American Stores Company) from the City of Johnstown, Cambria County to points within thirty (30) miles of the limits of said city." Betts Transfer has been a certificated carrier since 1933, authorized to operate as a Class D carrier within five miles of the limits of the City of Johnstown, Cambria County, Pennsylvania, and as a Class B carrier within three miles of the limits of said city. Alfred J. Furst, one of the protestant motor carriers, took this appeal and our Court permitted R.

[ 184 Pa. Super. Page 332]

E. Fritz, Motor Freight Express and Replogle Transport Co. to intervene as appellants.

The only questions raised by appellants are (1) is there a lack of substantial evidence to support the findings of the commission, and (2) did the commission abuse its administrative discretion.

In order to obtain the additional authority sought, the burden of proof was upon the applicant to establish (1) the need for additional service and (2) inadequacy of existing service. Pa. R.R. Co. v. Pa. P.U.C., 182 Pa. Superior Ct. 54, 60, 125 A.2d 624. The commission made the following finding: "After full consideration of the record in this proceeding, we find that existing motor carrier transportation service in the area affected by this application is not of a type or character which satisfies the public need and convenience and that the proposed service would tend to correct or substantially improve that condition; ..." In addition to the two Betts brothers, 11 shipper witnesses testified for the applicant. The testimony of the shipper witnesses clearly demonstrates the need for the type of service which the applicant proposes to render and also clearly demonstrates that this type of service has not been adequately furnished by the existing certificate holders. The applicant's witnesses expressed confidence in the ability of the applicant to render the type of service which they desired.

A witness appearing for Pennsylvania Telephone Company stated that his company required same-day pick-up and further required special equipment for the shipment of pole line equipment. The shipper's requirements in this respect indicated a necessity for a type of service which was not being rendered by then-certificated carriers. Shipper further testified that applicant's proposed ...


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