Appeal from order of Superior Court, March T., 1963, No. 32, affirming order of Pennsylvania Public Utility Commission, Application Docket No. 78703, Folder 1, Am-B, in case of Bunting Bristol Transfer, Inc., Highway Express Lines, Inc., Jones Motor Co., Inc. et al. v. Pennsylvania Public Utility Commission.
William E. Zeiter, with him Arthur R. Littleton, and Morgan, Lewis & Bockius, for appellants.
Robert M. Harris, Assistant Counsel, with him Thomas M. Kerrigan, Assistant Counsel, and Joseph C. Bruno, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.
S. H. Copelin, for intervening appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Concurring Opinion by Mr. Justice Cohen.
James C. Wetherill, t/d/b/a Hatboro Delivery Service (Wetherill), prior to 1962, was certificated as a motor carrier by the Pennsylvania Public Utility Commission (Commission), to (a) transport parcels and packages, as a Class D carrier, from retail stores in Hatboro Borough, Montgomery County, and within 10 miles of the usually traveled highways of the limits of that borough, excluding the City and County of Philadelphia and (b) to transport, as a Class B carrier, property between points in Hatboro Borough and to transport property, as a Class D carrier, from points in Hatboro Borough to points within 5 miles of the usually traveled highways of the limits of that Borough and vice versa.
On February 26, 1962, Wetherill applied to the Commission for an amendment to his certificated rights to permit him to transport as a common carrier "Property, excluding household goods in use, between points within a 5 mile radius of the Borough of Hatboro, and from said points to points in Philadelphia and vice versa."*fn1 On March 1, 1962, Wetherill amended his application to permit him to transport "property excluding household goods in use, between points in the Borough of Hatboro, . . ., and within five miles of [Hatboro Borough], and from points in [Hatboro Borough] and said territory to points in Philadelphia and vice versa." At the initial hearing, Wetherill's
counsel again amended the application stating: ". . . I want to amend the application so that it is limited to emergency service constituting pick-ups and delivery in less than twenty-four hours." (Emphasis supplied)
After hearings, the Commission, on September 10, 1962, entered a so-called "short form" order permitting Wetherill's common carrier certificate to be amended to include the right: "To transport, as a Class D carrier, limited to emergency service constituting pick-ups and deliveries in less than twenty-four (24) hours, property (excluding household goods in use and commodities in bulk in tank vehicles or in hopper type vehicles) between points in [Hatboro Borough], and within five (5) miles of the limits of said borough and from points in the said borough and within five (5) miles of the limits thereof to points in the City and County of Philadelphia, and vice versa." Seven protesting certificated motor carriers (appellants) appealed to the Superior Court which, upon the Commission's motion, remanded the record to the Commission to make specific findings of fact.
Thereafter, the Commission entered a so-called "long form" order affirming its previous order. The basis for this order, as stated by the Commission, was three-fold: (1) the existence of a need for the emergency transportation service granted; (2) the presently certificated carriers have not met this need; (3) whatever business Wetherill obtains will not adversely affect the activities of the presently certificated carriers. It is highly significant to note that in assigning its reasons for its order and in discussing the evidence the Commission does not discuss the fact that the service generally rendered up until the date of the initial hearing by Wetherill was ...