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SMITH v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (06/15/60)

June 15, 1960

SMITH, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeal, No. 149, April T., 1959, from order of Pennsylvania Public Utility Commission, No. 32178, Folder 6, in case of Claude Smith v. Pennsylvania Public Utility Commission et al. Order affirmed.

COUNSEL

H. Ray Pope, Jr., with him Pope and Alexander, for appellant.

Daniel F. Joella, Assistant Counsel, with him Joseph F. McCloskey, Assistant Counsel, and Thomas M. Kerrigan, Counsel, for Pennsylvania Public Utility Commission, appellee.

Heath L. Allen, with him Charles E. Thomas, and Hull, Leiby and Metzger, for protestant, intervening appellee.

Christian V. Graf, for protestant, intervening appellee.

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

Author: Rhodes

[ 192 Pa. Super. Page 427]

OPINION BY RHODES, P.J.

This is an appeal by Claude Smith, a certificated carrier, from an order of the Pennsylvania Public Utility Commission denying his application for additional transportation authority and ordering him to cease and desist from the transportation of property except as previously authorized. Appellant contends on this appeal that the commission violated appellant's constitutional rights, or committed errors of law in giving consideration to an alleged commission staff report without affording appellant an opportunity to examine the report, and in issuing a cease and desist order without prior specific notice to appellant. Factual or evidentiary questions are not raised.

On October 7, 1957, appellant applied for additional rights as a common carrier by motor vehicle. Protests were filed by other carriers and hearings on the application extended over eight days. Appellant and several of the protestants filed briefs. On April 27, 1959, the commission issued a short form order refusing the application and ordering appellant to cease and desist from the transportation of property except as he had been previously authorized. On May 11, 1959, appellant filed a petition for reopening, further hearing, reconsideration, and modification of the order of April 27, 1959, which petition the commission denied on June 8, 1959. The petition to reopen averred, inter alia, that the commission based its order refusing the application in whole or in part upon consideration of a written report prepared by the commission staff. It was alleged that none of the members of the staff was present at any of the hearings, and that the commission's consideration of this report violated due process of law since the report, the review of the evidence, and the recommendations were not made available to appellant or his counsel. The staff report was not made a matter of record.

[ 192 Pa. Super. Page 428]

On July 6, 1959, appellant appealed to this Court, whereupon the commission petitioned for remission of the record for further study and consideration, to make specific findings in sufficient detail to determine the controverted questions involved, and to make an order based thereon in lien of the previous short form order. The record was remanded and on August 17, 1959, the commission filed its long form order. In its long form order the commission analyzed and discussed the testimony presented on the merits of the application, and concluded that the existing certificated carriers were able to render the service sought by applicant. Hence, the commission determined that the additional rights were not necessary or proper for the service, accommodation, or convenience of the public.

Appellant has not raised any evidentiary questions; nor has he indicated in what manner, if any, the commission's discussion of the evidence and its findings are not in accord with the record. Moreover, he does not demonstrate in what manner, if any, the consideration of a staff report prejudiced his application. In the absence of any showing of such error or prejudice, the constitutional question involving utilization of a staff report normally should not be considered on appeal. Market Street Railway Company v. Railroad Commission, 324 U.S. 548, 65 S. Ct. 770, 89 L. Ed. 1171, 1182; Perrin's Appeal, 305 Pa. 42, 52, 53, 156 A. 305. "'No one is entitled to be heard on a constitutional point ...


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