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T. M. ZIMMERMAN COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (04/13/61)

April 13, 1961

T. M. ZIMMERMAN COMPANY, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeal, No. 21, March T., 1961, from order of Pennsylvania Public Utility Commission, No. 76270, Folder 2, in case of T. M. Zimmerman Company v. Pennsylvania Public Utility Commission. Order affirmed.

COUNSEL

John M. Musselman, with him Rhoads, Sinon & Reader, for appellant.

Paul Ribner, Assistant Counsel, with him Joseph I. Lewis, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 195 Pa. Super. Page 79]

OPINION BY WRIGHT, J.

We are here concerned with an appeal by the T. M. Zimmerman Company from an order of the Pennsylvania Public Utility Commission, dated June 27, 1960, declaring certain transportation to be beyond the scope of appellant's certificated authority, and directing that appellant cease and desist from the transportation of property not authorized by its certificate of public convenience.*fn1 The question before us is whether appellant may transport foodstuffs under a certificate of public convenience authorizing the transportation as a Class D carrier of "new household goods, new furniture, new furnishings, new stock and fixtures, new office furniture and equipment and new

[ 195 Pa. Super. Page 80]

    works of art". Simply stated, this question turns on the interpretation in context of the words "new stock". It will be necessary to set forth the factual and procedural history in some detail.

On January 14, 1956, the T. M. Zimmerman Company, a motor carrier holding certain rights not material here, applied to the Commission for the transfer of rights issued to one Joseph Kulb. These rights authorized the transportation, as a Class D carrier, of "new household goods, new furniture, new furnishings, new stock and fixtures, new office furniture and equipment and new works of art" in designated areas. At the hearing on March 19, 1956, protestants appeared to challenge the transfer. Thereafter, by an order of the Commission dated August 6, 1956, the transfer was approved. However, in its discussion of the matter, the Commission observed that certain of the transportation rendered by Kulb exceeded the authority intended by the rights originally granted and as constituted at the time of the transfer. Continuing, the Commission stated:

"Commission records show that the carrier authority here under consideration issued originally to Harry Andre, trading as Dependable Storage Company, Philadelphia. Andre was granted original rights at A. 25848, F. 1 on July 10, 1933, to transport household goods and office furniture in use between points in Philadelphia and 12 trips annually to points within 25 miles, said rights expiring August 1, 1935, unless renewed. Thereafter, Andre applied at A. 25848, F. 2 to expand his carrier authority and the application was approved August 1, 1934, superseding the rights at A. 25848, F. 1, and authorizing the transportation of new and used items as set forth in the rights and territory enumerated above. The rights at A. 25848, F. 2 were renewed at A. 25848, F. 3 on February 2, 1937, and following the demise of Harry Andre on

[ 195 Pa. Super. Page 81]

January 7, 1954, the new and used rights were sold to Joseph Kulb (A. 79510, F. 3) with Commission approval granted June 27, 1955. Kulb sold the used portion of the rights to George D. McClain, Jr. (A. 82467) with Commission approval granted October 17, 1955, and in the ...


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