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BYERLY ET AL. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (10/09/70)

decided: October 9, 1970.

BYERLY ET AL., APPELLANTS,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION



Appeals from orders of the Superior Court, Oct. T., 1969, Nos. 374 and 424, affirming orders of Pennsylvania Public Utility Commission, Nos. 18547 and 87069, in case of Oscar H. Byerly et al. v. Pennsylvania Public Utility Commission.

COUNSEL

S. Berne Smith, with him McNees, Wallace & Nurick, for appellants.

D. J. Ferraro, Assistant Counsel, with him Paul Silverstein, Counsel, for Pennsylvania Public Utility Commission, appellee.

Leonard R. Apfelbaum, with him Sidney Apfelbaum, for intervenors, appellees.

Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell took no part in the consideration or decision of this case.

Author: Cohen

[ 440 Pa. Page 523]

These are appeals from two orders of the Superior Court affirming orders of the Public Utility Commission. Two proceedings were brought before the PUC. In one D. R. Whitmer Sons sought to acquire by transfer the certificates of public convenience as a common carrier by motor vehicle issued to Charles Forney. In that action Byerly's Service, Registered was the protestant. In the other action Byerly's Service, Registered attempted to have the certificate issued to Forney revoked and cancelled on the ground that operations under the certificate had ceased because of a lack of necessity. The PUC approved the transfer and dismissed the complaint. The Superior Court affirmed, 215 Pa. Superior Ct. 304, 257 A.2d 922 (1969) (Montgomery, J., filed a dissenting opinion in which Jacobs, J., joined). We granted allocatur.

This proceeding grows out of the proposed sale of a common carrier truck certificate by Charles Forney

[ 440 Pa. Page 524]

    to D. R. Whitmer Sons. In 1961 Forney received a PUC certificate from his brother under which he obtained authority to transport (a) building supplies and materials within a certain area and (b) coal, sand and gravel within a certain other area. The record discloses that he never transported any building supplies, building materials, sand or gravel and that he transported no coal after 1965. In 1968 Forney reached an agreement with D. R. Whitmer Sons (Whitmer) by which the latter was to purchase his whole business, including the certificate, for $21,500. It was then that Whitmer applied to the PUC for approval of transfer of the certificate. After the hearing in that action but prior to a decision, Byerly's Service, Registered (Byerly), a competitor of Forney and Whitmer, filed the complaint which sought to have Forney's certificate revoked and cancelled.

The commission found against Byerly in both actions on the theory that Byerly had not sustained its burden of proving that Forney had abandoned its rights. Its opinion states: "This is not a situation where a transferor has abandoned service and sold his equipment. In this case the transferor always had equipment available to provide service and at no time did he put himself into a position whereby he could not render any service requested of him by the public. . . . Forney paid annual assessments against him as a public utility and continued to maintain insurance, annual reports, and tariffs on file with this Commission. At no time did he orally or in writing evidence any intention to abandon the rights. All of these circumstances negate any intent on his part to abandon his certificated rights."

It is necessary for us to restate the principles applicable to transfer cases for it appears that some confusion has ...


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