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JOHNSTOWN-PITTSBURGH EXPRESS v. PUBLIC UTILITY COMMISSION AND W.C. MCQUAIDE (06/01/72)

decided: June 1, 1972.

JOHNSTOWN-PITTSBURGH EXPRESS, INC.
v.
PUBLIC UTILITY COMMISSION AND W.C. MCQUAIDE, INC., INTERVENOR



Appeals from the Orders of the Pennsylvania Public Utility Commission in case of In Re: Application of W.C. McQuaide, Inc. Application Docket No. 84290. Appeals transferred from the Superior Court of Pennsylvania to the Commonwealth Court of Pennsylvania, July 30, 1971.

COUNSEL

Arthur J. Diskin, for appellant.

William A. Goichman, Assistant Counsel, with him Edward Munce, Acting Counsel, Paul Silverstein, Assistant Counsel, and Philip P. Kalodner, Counsel, for appellee.

Christian V. Graf, for intervenor.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.

Author: Rogers

[ 5 Pa. Commw. Page 522]

Johnstown-Pittsburgh Express, Inc. (J-PX) has appealed from two orders of the PUC granting enlarged authority to transport property by motor vehicle to a competitor, W.C. McQuaide, Inc. (McQuaide). Twenty-two days of hearings produced more than 2500 pages of testimony. The appellant was excused by us from printing any part of the record on its representation that its only concern was with service to and from Allegheny

[ 5 Pa. Commw. Page 523]

County and that its brief would make pertinent reference to the parts of the record dealing with that subject. Unhappily, because the parties have directed our attention to more than 500 places in the ten folders comprising the evidence files, the time spared counsel in the reproduction of the pertinent evidence has been expended by the court in grappling with this monumental record.

The appellant, J-PX, is certificated to transport property from Allegheny County to the City of Johnstown and within a radius of five miles of the latter, and vice versa. The intervening appellee, McQuaide, was, prior to the orders here appealed from, authorized to transport property from points in the Borough of Martinsburg, Blair County, and within an airline distance of thirty miles from Martinsburg to points within an airline distance of one hundred and eighty miles of the limits of that Borough and vice versa. McQuaide purchased its rights from another carrier. Both McQuaide and its predecessor served shippers in all of the City of Johnstown, the subject of the order here appealed to Number 57 Transfer Docket 1971, and in certain Johnstown suburban communities, the subject of the order here appealed to Number 58 Transfer Docket 1971. They did so because they believed that they were entitled to do so under their certificate. In March 1963, seventeen motor carriers filed a complaint with the PUC that McQuaide was performing transportation beyond the territorial limits of its certificate. This confronted the PUC with the necessity of deciding the meaning of McQuaide's authority to render service "within an airline distance of thirty miles from Martinsburg." McQuaide had taken airline distance in miles to mean nautical miles consisting of 6076.1 feet because this is the standard used in air travel. The complainants contended that the authorization was of statute miles, consisting of 5280 feet. If nautical miles

[ 5 Pa. Commw. Page 524]

    were meant, all of McQuaide's operations were proper. On the other hand, much of Johnstown and its suburbs served by McQuaide were beyond a radius of thirty statute miles from Martinsburg. Not until August 23, 1965, did the PUC hand down its order declaring for statute miles and directing McQuaide to stop violating its certificate by movements beyond thirty statute miles from Martinsburg. Joseph R. Protsko t/d/b/a Altoona-Pittsburgh Freight Line, et al., 42 Pa. P.U.C. 385 (1965). This was appealed to the Superior Court pending which the PUC stayed its cease and desist order. On February 25, 1966, the Superior Court remanded the record for further hearing and argument, after which, on May 1, 1967, the PUC affirmed its previous order.*fn1 Joseph R. Protsko t/d/b/a Altoona- Pittsburgh Freight Line, et al., 43 Pa. P.U.C. 198 (1967). From the date of the order of the Superior Court, McQuaide ceased movements in the area held not to be within its authority, except for certain violations assertedly inadvertent, for which it was "fined" $550 by the P.U.C. See Rule Against McQuaide, 43 Pa. P.U.C. 101 (1966).

The instant application proceedings were commenced by McQuaide on September 16, 1965, seeking rights in all of Johnstown and were followed on July 28, 1967, by a request for authority in the previously served suburban Johnstown areas. The Commission's orders granting McQuaide's ...


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