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W. D. RUBRIGHT CO. ET AL. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (01/16/62)

January 16, 1962

W. D. RUBRIGHT CO. ET AL., APPELLANTS,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeals, Nos. 117 and 118, April, T., 1961, from order of Pennsylvania Public Utility Commission, Application Docket No. A 79243 Folder 1 Am A., in case of W. D. Rubright Co. v. Pennsylvania Public Utility Commission, and Orlo L. Prior, Inc. v. Same. Order affirmed.

COUNSEL

Frederick L. Kiger, with him Jerome Solomon, for appellants.

William A. Goichman, Assistant Counsel, with him Joseph I. Lewis, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.

Paul Leo McSorley, for intervening appellee.

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

Author: Flood

[ 197 Pa. Super. Page 244]

OPINION BY FLOOD, J.

This is an appeal from an order of the Public Utility Commission approving a transfer from William Lenzner of Ben Avon, Pennsylvania, to Robert H. Carr and Sons of Malvern, Pennsylvania, of the following motor carrier rights:

"To transport, as a Class D carrier, milk in glass lined tanks from points within one hundred twenty-five (125) miles by the usually traveled highways of the limits of the City of Pittsburgh, Allegheny County, to points in the said city.

"To transport, as a Class D carrier, raw milk in glass lined milk tanks for the Meadow Gold Dairies, Inc., from the Borough of Berlin, Somerset County, to the City of Pittsburgh, Allegheny County.

[ 197 Pa. Super. Page 245]

"To transport, as a Class D carrier, milk and milk products in containers and cans, bulk and tank trucks and empty containers from points within one hundred twenty-five (125) miles by the usually traveled highways of the limits of the City of Pittsburgh, Allegheny County, to points in the County of Allegheny, and vice versa."

In its order approving the transfer the commission deleted from the certificate the words "glass lined" and left to the transferee's own managerial choice the type of equipment to be used.

Appellants, protestants in the transfer proceeding, contend that the commission erred in approving the transfer because (1) the transferor abandoned service under the certificate prior to the date of transfer, (2) no proof of continuing public necessity was produced and the transferee proposes to institute a service basically different from that rendered by the transferor, and (3) the commission, in deleting the words "glass lined" from the certificate without giving appellants notice and opportunity to be heard as required by Section 1007 of the Public Utility Law, P.L. 1053, 66 PS § 1397, violated procedural due process.

William Lenzner, the transferor, has been hauling milk since 1924. He acquired his certificate on December 20, 1938, under the so-called "grandfather clause". While the record does not disclose the details of his operations prior to 1958, at one time he had as may as five tank trucks or trailers of varying capacity. During the year 1958, in addition to hauls for Meadow Gold Dairies, Inc., Lenzner made several hauls from Berlin to the Pittsburgh plant of the Borden Milk Company, although it appears that these hauls were made at the direction of Meadow Gold Dairies, Inc. Since January 1, 1959, Lenzner has hauled milk only for Meadow Gold, but his hauls for Meadow Gold have been made, not only from Berlin, Somerset County, but

[ 197 Pa. Super. Page 246]

    also from Sandy Lake in Mercer County. Lenzner has done no hauling since March 1, 1960, when Meadow Gold Dairies, Inc. began hauling its own milk. Lenzner's gross revenues under his certificate were approximately $65,500 in 1957, $75,000 in ...


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