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JOHN GIBBONS v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (03/25/75)

decided: March 25, 1975.

JOHN GIBBONS, INC., APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEE, AND FOLLMER TRUCKING COMPANY AND FOWLER & WILLIAMS, INC., INTERVENING APPELLEES



Appeal from the Order of the Pennsylvania Public Utility Commission in case of In Re: Application of John Gibbons, Inc., a corporation of the State of Delaware, for amendment to its common carrier certificate so as to permit the transportation of property from the facilities of the Drackett Products Company and the B.A.S.F. Wyandotte Corporation in the Borough of East Stroudsburg and the Township of Stroud, Monroe County, to points in Pennsylvania, east of U.S. Route 15, and vice versa, No. 24416.

COUNSEL

Alan Kahn, with him Kahn, Bushman, Rosenberg & Weisberg, for appellant.

Frank B. Wilmarth, Asistant Counsel, with him Alfred N. Lowenstein, Assistant Counsel, and Edward Munce, Acting Counsel, for appellee.

Herbert R. Nurick, with him McNees, Wallace & Nurick, for intervening appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Mencer, Rogers and Blatt. Judge Wilkinson, Jr. did not participate. Opinion by Judge Mencer.

Author: Mencer

[ 18 Pa. Commw. Page 116]

On May 16, 1973, an application was filed with the Pennsylvania Public Utility Commission (Commission) by John Gibbons, Inc. (applicant) for an amendment of its certificate of public convenience. Applicant sought the additional right "to permit the transportation of property from the facilities of the Drackett Products Company and the B.A.S.F. Wyandotte Corporation in the Borough of East Stroudsburg and the Township of Stroud, Monroe County, to points in Pennsylvania, east of U.S. Route 15, and vice versa."

Protests were filed to the application on behalf of Follmer Trucking Company (Follmer) and Fowler & Williams, Inc. (F & W). Following two hearings, the Commission, on May 24, 1974, adopted a short-form order denying the modification sought by applicant. Thereafter, applicant filed this appeal. The Commission issued its long-form order on August 8, 1974 to which Commissioner Carter dissented. Protestants petitioned to intervene as party appellees and we granted this petition on August 27, 1974.

The three questions presented to this Court by applicant can be condensed to what is in essence only one question: whether or not the Commission was arbitrary and capricious or ignored the weight of the evidence in its decision denying the modification of the certificate.

[ 18 Pa. Commw. Page 117]

We must keep in mind, when considering the legal sufficiency of the evidence, the fact that this Court cannot exercise independent judgment on the record and can neither weigh evidence nor resolve conflicting testimony. If there is substantial evidence supporting the order of the Commission, we may not set it aside. Substantial evidence is such relevant evidence as a reasonable mind can accept as adequate to support a conclusion. Bucks Page 117} County Board of Commissioners v. Pennsylvania Public Utility Commission, 11 Pa. Commonwealth Ct. 487, 313 A.2d 185 (1973).

It is a sound principle of law that "[i]n 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)." ...


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