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GUY WILLIAM SEIFERD v. COMMONWEALTH PENNSYLVANIA (02/14/74)

decided: February 14, 1974.

GUY WILLIAM SEIFERD, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEE, AND GETTYSBURG TOURS, INC., INTERVENING APPELLEE



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Application of Gettysburg Tours, Inc., for an amendment of its Certificate of Public Convenience and Necessity, No. 86412, Folder 4, Am-A.

COUNSEL

Robert E. Yetter, with him Metzger, Wickersham, Knauss & Erb, for appellant.

Alfred N. Lowenstein, Assistant Counsel, with him Philip P. Kalodner, Counsel, for appellee.

James D. Campbell, Jr., with him Nauman, Smith, Shissler & Hall, for intervening appellee.

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

Author: Mencer

[ 12 Pa. Commw. Page 86]

On July 24, 1972, an application was filed with the Pennsylvania Public Utility Commission (Commission) by Gettysburg Tours, Inc. (applicant), for an amendment to its Certificate of Public Convenience. The applicant sought the additional right "to transport as a common carrier by motor vehicle, groups or parties of persons and persons on special excursions and tours or sightseeing trips from points in the Townships of Highland, Liberty, Freedom, Franklin, Mt. Joy, Mt. Pleasant, and Hamiltonban, Adams County, Pennsylvania to points and places in Pennsylvania."

[ 12 Pa. Commw. Page 87]

On August 14, 1972, Guy William Seiferd (protestant) filed a protest. Following a hearing, the Commission, on May 21, 1973, issued a short-form order approving the requested amendment sought by the applicant. Thereafter, protestant filed this appeal and applicant petitioned for leave to intervene as a party appellee. We granted such intervention on July 2, 1973. The Commission issued its long-form order on August 17, 1973.

In cases of this nature it is the Commission's duty to determine whether or not the granting of a certificate of public convenience is necessary or proper for the service, accommodation, convenience, or safety of the public. Section 203 of the Public Utility Law, Act of May 28, 1937, P.L. 1053, 66 P.S. § 1123. When such a determination has been made and an order entered by the Commission, we may not disturb that order except for an error of law, lack of evidence to support the finding, determination or order of the Commission, or a violation of constitutional rights. Section 1107 of the Public Utility Law, as amended, 66 P.S. § 1437.

Applicant has the burden of proving public need for the proposed service and the inadequacy of existing service. It is required to show a reasonable additional necessity not satisfied by existing service, and that the proposed service would tend to correct or substantially improve that condition. Jones Motor Company, Inc. v. Pennsylvania Public Utility Commission, 202 Pa. Superior Ct. 134, 195 A.2d 125 (1963).

The protestant in this appeal asserts that applicant has not met the burden of proving public need for the proposed service and inadequacy of existing service.

We have carefully read the testimony and find evidence to support the order of the Commission which was not capricious or arbitrary in the exercise of its discretion. We may not substitute our independent ...


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