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D. F. BAST v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (09/28/59)

September 28, 1959

D. F. BAST, INC. ET AL., APPELLANTS,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeals, Nos. 300, 301, 311, 333, 341, and 342, Jan. T., 1958, from judgment of Superior Court, Oct. T., 1957, Nos. 231, 232, 233, 234, 235, 236, and 239, affirming order of Pennsylvania Public Utility Commission, Docket No. A. 78535, Folder 2, Amendment A, in case of D. F. Bast, Inc. et al. v. Pennsylvania Public Utility Commission. Judgment reversed. Same case in Superior Court: 185 Pa. Super.Ct. 487. Proceeding before Public Utility Commission upon application of carrier for grant of additional authority. Order entered granting authority upon amended application. Protestants appealed to Superior Court, which affirmed order, opinion by WRIGHT, J., RHODES, P.J., and HIRT, J., dissenting. Appeal to Supreme Court allowed.

COUNSEL

Paul F. Barnes, William J. Wilcox, and John E. Fullerton, with them George A. Rupp, and Shertz, Barnes & Shertz, and Butz, Hudders, Tallman & Rupp, and Snyder, Wert, Wilcox, Frederick & Doll, for appellants.

Paul Ribner, Assistant Counsel, with him Thomas M. Kerrigan, Counsel, for appellee.

Gene D. Smith, for intervening appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen and Bok, JJ.

Author: Jones

[ 397 Pa. Page 248]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

This is an appeal from a judgment of the Superior Court affirming an order of the Pennsylvania Public Utility Commission*fn1 which amended the original common carrier certificate of the intervening appellee, Bob Young Trucking, Inc. (hereinafter called Young). This amendment authorized Young to exercise certain additional rights in the transportation of iron and steel articles. The action of the Commission was affirmed by a divided Superior Court.*fn2 We granted an allocatur.

On May 15, 1956 Young filed an application with the Commission for a certificate of public convenience to authorize it to "transport as a Class D carrier all types and forms of steel and metal articles from the City of Bethlehem to points in Pennsylvania". At the time of filing this application, in addition to holding other transportation rights not presently material, Young was authorized (1) to transport iron and steel articles by motor vehicles for the Bethlehem Contracting Company in the City of Bethlehem to points in Pennsylvania within fifty miles and (2) to transport, in emergencies, as a Class D carrier iron and steel articles by motor vehicles from the Bethlehem Steel Company in the City of Bethlehem to points in Pennsylvania within one hundred miles. The present appellants -

[ 397 Pa. Page 249]

    trucking concerns who are the holders of common carrier certificates - filed protests against the granting of the application.

After extensive hearings, the Commission entered a so-called "short form" order which extended Young's existing rights. An appeal was taken to the Superior Court; on motion of the Commission, the record was remanded in order that specific findings might be made by the Commission and a so-called "long form" order entered. On September 3, 1957 the Commission entered a "long form" order which authorized Young: "To transport, as a Class D carrier, fabricated or structural iron and steel articles, on pole, flat-bed or low side trailers, from the City of Bethlehem, situated in Northampton and Lehigh Counties, to points in Pennsylvania, within 100 miles of Bethlehem, excluding the transportation of manufactured iron and steel articles for Bethlehem Steel Company to the City of Johnstown, the Boroughs of Franklin and Conemaugh and the Township of West Taylor, Cambria County." The present controversy questions the propriety of this order.

In considering an application for a certificate of public convenience, such as presently involved, it is the Commission's duty to determine whether or not "the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public": Act of May 28, 1937, P.L. 1053, art. II, § 203, 66 PS § 1123. Once such a determination has been made and an order entered by the Commission an appellate court is bound to accede to the Commission's action unless there be "an error of law or lack of evidence to support the finding, determination or order ... ...


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