Appeal from order of Superior Court, March T., 1967, No. 5, reversing order of Pennsylvania Public Utility Commission, No. 18137, in case of Pennsylvania Public Utility Commission v. Wellington Stiely.
William A. Goichman, Assistant Counsel, with him Joseph C. Bruno, Chief Counsel, for Pennsylvania Public Utility Commission, appellant.
Harold S. Shertz, with him Morgan, Lewis & Bockius, for Pennsylvania Motor Truck Association, intervening appellant.
Robert E. Woodside, with him R. J. Woodside, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Eagen joins in this dissenting opinion.
The Pennsylvania Public Utility Commission, on its own motion, instituted a complaint against Wellington Stiely, charging the unauthorized operation of a motor vehicle as a common or contract carrier. The Pennsylvania
Motor Truck Association was granted leave to intervene and the matter was submitted on briefs and oral argument, there being no factual disputes. The commission sustained the complaint and issued a cease and desist order against Stiely. An appeal to the Superior Court resulted in a reversal of the order of the commission and a dismissal of the complaint. Stiely v. Pa. P.U.C., 209 Pa. Superior Ct. 440 (1967). On the commission's petition for reconsideration of our previous denial of its petition for the allowance of an appeal, we granted allocatur.
The facts of the case are brief and simple. Stiely admitted that he transported, by dump truck, 19,300 pounds of coarse, aggregate stone, for compensation, from the Faylor Lime and Stone Co., Washington Township, Dauphin County, to the premises of Gratz Fair, Inc., Borough of Gratz, Dauphin County. Stiely further admits that he is neither certificated as a common carrier nor the holder of a contract carrier's permit. The parties are agreed that the hauled material was to be used in the construction of a road on private property owned and operated by Gratz Fair, Inc.
As stated by the Superior Court, "The controlling issue before us involves an interpretation of definitions set forth in the Public Utility Law. Subsections (6) and (7) of Section 2 of the Act of May 28, 1937, P. L. 1053, as amended, 66 P.S. 1102, read in pertinent part as follows: '(6) "Common Carrier by Motor Vehicle" means any common carrier who or which holds out or undertakes the transportation of passengers or property, or both, or any class of passengers or property, between points within this Commonwealth by motor vehicle for compensation . . . but shall not include . . . (d) any person or corporation who or which uses, or furnishes for use, dump trucks for the transportation of ashes, rubbish, excavated and road construction materials.
(7) "Contract Carrier by Motor Vehicle" means any person or corporation who or which provides or furnishes transportation of passengers or property, or both, or any class of passengers or property, between points within this Commonwealth by motor vehicle for compensation . . . but shall not include . . . (e) any person or corporation who or which uses, or furnishes for use, dump trucks for the transportation of ashes, rubbish, excavated or road construction materials'."
The commission adopts the position that the exemption or exception provided by the Act is limited to the transportation of materials used in the construction of public roads, and then only if the transportation is to the actual site of the public road construction project. We are in agreement with the Superior Court's rejection of this narrow interpretation. The opinion of the Superior Court correctly decides the question and we observe no proper cause for further amplification. The language of the statute is plain and unambiguous and there is no need to resort to any rules of construction to find a meaning not contained in that language.
The commission also argues that if the view which we adopt is correct, the Act is unconstitutional as special legislation. Stiely contends that the constitutionality question was not raised below and is, therefore, not properly before us. A reading of the commission's order, however, shows clearly that one of the reasons for its conclusion was the possibility that any other conclusion would create constitutional problems. We therefore conclude that the question was raised and considered below and requires resolution here.
The commission, without saying so, apparently reached the conclusion that an exclusion of dump trucks hauling road ...