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MORGAN DRIVE AWAY v. P.U.C. AND EMIG (07/31/72)

decided: July 31, 1972.

MORGAN DRIVE AWAY, INC.
v.
P.U.C. AND EMIG, INTERVENOR. NATIONAL TRAILER CONVOY, INC. V. P.U.C. AND EMIG, INTERVENOR



Appeals from the Order of the Pennsylvania Public Utility Commission in case of In Re: Application of Joseph W. Emig t/d/b/a Colonial Estate Mobile Home Sales, Application Docket No. 95700, Folder 2.

COUNSEL

Christian V. Graf, for appellant, Morgan Drive Away, Inc.

James D. Campbell, Jr., with him Nauman, Smith, Shissler & Hall, for appellant, National Trailer Convoy, Inc.

Alfred N. Lowenstein, Assistant Counsel, with him Philip P. Kalodner, Counsel, and Edward Munce, Acting Counsel, for appellee.

Richard W. Roeder, with him Mahany & Roeder, for intervenor.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Crumlish, Jr. Concurring and Dissenting Opinion by Judge Blatt. Judge Mencer joins in this Opinion.

Author: Crumlish

[ 6 Pa. Commw. Page 231]

The Pennsylvania Public Utility Commission approved the application of Joseph W. Emig (transferee, trading and doing business as Colonial Estates Mobile Home Sales) to acquire by transfer the certificate of public convenience as a common carrier by motor vehicle issued in 1966 to Bud L. Rice (transferor). The transferee had purchased, by option, and applied for transfer of the transferor's certificate to transport used mobile homes and used house trailers for private owners between certain points in the Commonwealth as set forth in transferor's certificate.

Protests to the application were filed by two competitors, both appellants herein, alleging primarily that the transferor's certificate had been abandoned by him and hence could not be transferred. At a hearing on the application before the Commission-appointed hearing examiner, the only evidence presented by either side was protestants' offer of the annual financial reports of the transferor which disclosed that he had been inoperative during the three years preceding the application. The Commission, in review, approved the transfer. Appeals from the order followed. Thereupon, the matter was remitted to the Commission for the submission of a "long form" order with specific findings of fact and conclusions of law so that appellate review would move with dispatch.

Appellants make two objections to the Commission's order: (1) the Commission did not make a finding, as required, that the applicant was fit and proper to hold a certificate; and (2) the Commission erred by failing to find that the presumption that the need for service continues was overcome by evidence of inactivity. We dismiss both objections.

[ 6 Pa. Commw. Page 232]

First, the Commission's order does not make a specific finding of transferee's fitness. Appellants contend that such a finding is necessary in order to grant a certificate of public convenience. Byham v. Pennsylvania Public Utility Commission, 165 Pa. Superior Ct. 253, 67 A.2d 626 (1949). They suggest that since the record contains no evidence of transferee's ownership of trucks, insurance coverage, knowledge of the business, or financial ability, the Commission was not properly postured to pass on the applicant's fitness.

The Commission is mandated by statute prior to a grant of a certificate to determine whether certification is "necessary or proper for the service, accommodation, convenience, or safety of the public. . . ." The Public Utility Code, Act of May 28, 1937, P.L. 1053, Art. II, § 203, 66 P.S. § 1123. Although the Superior Court properly held in Byham that this duty includes scrutiny of the applicant's fitness, neither the courts nor the legislature have ordered the Commission to make specific findings of fitness. The Commission may by its review demonstrate full ...


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