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MARMER ET AL. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (09/16/59)

September 16, 1959

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



Appeal, No. 144, Oct. T., 1959, from order of Pennsylvania Public Utility Commission, Complaint Docket No. 16811, in case of Francis and Joseph Marmer, co-partners, trading and doing business as Mitchell's Cab Service v. Pennsylvania Public Utility Commission et al. Order affirmed.

COUNSEL

Laurence H. Eldredge, with him Sylvan D. Einhorn, for appellants.

William A. Goichman, Assistant Counsel, with him Thomas M. Kerrigan, Counsel, for Pennsylvania Public Utility Commission, appellee.

George G. Parry, Jr., with him Irving R. Segal, William A. Schnader, and Schnader, Harrison, Segal & Lewis, for complainant, intervening appellee.

Before Rhodes, P.j., Wright, Woodside, Ervin, and Watkins, JJ. (hirt and Gunther, JJ., absent).

Author: Rhodes

[ 190 Pa. Super. Page 438]

OPINION BY RHODES, P.J.

This is a complaint proceeding. The Yellow Cab Company of Philadelphia filed a complaint with the Pennsylvania Public Utility Commission charging respondents, Francis Marmer and Joseph Marmer, co-partners trading at Mitchell's Cab Service, with transportation of persons for hire throughout the City of Philadelphia in violation of their certificate of public convenience. The commission sustained the complaint, ordered respondents to cease and desist from performing transportation except as presently authorized, and granted leave to file an application for amendment of the certificate. Respondents have appealed.

The certificate of public convenience held by the respondents authorizes them to "... transport, as a common carrier by motor vehicle, persons upon call or demand in the City of Philadelphia - Stands: 62nd Street and Woodbine Avenue, and the Pennsylvania Railroad Station at Overbrook." It is the interpretation of this certificate as to the extent of the rights granted thereby which forms the determinative issue of this case. Respondents claim that they are authorized to render service throughout the City of Philadelphia notwithstanding the designation of stands in the certificate. The Yellow Cab Company contended and the commission determined that the authority of respondents is restricted to service originating at the stands specified in the certificate. There is no dispute of the fact that respondents have been rendering call and demand service throughout the City of Philadelphia, whether originating at the designated stands or otherwise. In fact, the designated stands have been abandoned or lost to respondents without commission approval.

On November 13, 1956, respondents purchased the operating rights of Albert R. Mitchell upon application

[ 190 Pa. Super. Page 439]

    to the commission for the sum of $11,000. Mitchell had operated this agency service in Overbrook for approximately thirty-five years; his father had operated it before him, beginning with a livery business about 1900. Mitchell apparently obtained his first certificate of public convenience on January 5, 1931. It was thereafter renewed in 1933 and 1935. In 1936 the commission granted the renewal of the certificate phrased in the language now appearing in respondents' certificate. When respondents acquired the Mitchell rights in 1956, they acquired only those rights which Mitchell had subject to the same limitations and restrictions. See Follmer Trucking Company v. Pennsylvania Public Utility Commission, 189 Pa. Superior Ct. 204, 220, 150 A.2d 163.

The question arises as to the nature of the authority of Mitchell which was transferred to respondents. As an administrative agency the commission is peculiarly fitted to interpret its own orders and to determine the extent and the limit of transportation rights granted to a carrier under its certificate of public convenience; and this Court will not set aside a construction placed upon the certificate by the commission unless the result is clearly erroneous, arbitrary, and unsupported by the evidence. W. J. Dillner Transfer Company v. Pennsylvania Public Utility Commission (No. 1), 175 Pa. Superior Ct. 461, 463, 107 A.2d 159. In the present case the commission determined that the first part of the certificate granting authority to transport on call or demand within ...


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