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DUTCHLAND TOURS v. COMMONWEALTH PENNSYLVANIA (05/05/75)

decided: May 5, 1975.

DUTCHLAND TOURS, INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEE, AND JOHN N. THOMAS, INTERVENING APPELLEE. CONESTOGA TRANSPORTATION COMPANY AND CONESTOGA TOURS, INC., APPELLANTS, V. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEE, AND JOHN N. THOMAS, INTERVENING APPELLEE



Appeals from the Order of the Pennsylvania Public Utility Commission in case of In Re: Application of John N. Thomas for the right to begin to transport, as a common carrier, by motor vehicle, groups and parties of persons, persons on special excursions and tours or sight-seeing trips, who are guests of the Willow Valley Motor Inn, located in the Township of West Lampeter, Lancaster County, to points and places in the Commonwealth of Pennsylvania, No. 97525.

COUNSEL

James D. Campbell, Jr., with him Ernest S. Burch, and Nauman, Smith, Shissler & Hall, for appellant, Dutchland Tours.

John P. Kershner, with him Barley, Snyder, Cooper & Mueller, for appellant, Conestoga.

Melville G. M. Walwyn, with him Edward Munce, Acting Counsel, and Alfred N. Lowenstein, Assistant Counsel, for appellee.

John W. Burge, with him M. Elvin Byler, and Wenger and Byler, for intervening appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Kramer. Judge Blatt joins in this dissent.

Author: Crumlish

[ 19 Pa. Commw. Page 3]

This is an appeal by protestants from an order of the Pennsylvania Public Utility Commission (PUC) granting to John N. Thomas (Thomas) a certificate of public convenience to "transport as a common carrier, persons who are guests of the Willow Valley Motor Inn, on special excursions and tours or sightseeing trips, from the said Willow Valley Motor Inn, located in the Township of West Lampeter, Lancaster County, to points of political, social, economic, cultural and historic interest of the Mennonite religious sect in Lancaster County."

On September 15, 1972, Thomas filed an application for a certificate of public convenience to conduct a sightseeing tour for guests of his family-owned motel to farms and markets operated by Thomas and other points of interest related to the Mennonite culture in Lancaster County. The tour, which Thomas proposes to offer to his motel guests as a "package deal" with food and accommodations,*fn1

[ 19 Pa. Commw. Page 4]

    had been run for two years prior to the application, and Thomas pleaded guilty to unauthorized service after submitting the application. Protests were duly filed to the application by Dutchland Tours, Inc., Conestoga Transportation Company, and Conestoga Tours, Inc. which conduct and sell tickets for sight-seeing tours in the same area of operation proposed by Thomas. The matter proceeded to hearing and on August 17, 1973, PUC entered its short-form order granting the certificate of public convenience noted above. Protestants filed appeals in this Court, Thomas was granted leave to intervene as a party appellee, and the cases were consolidated for argument and disposition. The PUC thereafter issued its long-form order affirming the above certificate of public convenience. On April 17, 1974, this Court vacated the long-form order and remanded the matter to PUC for the purpose of entering specific findings of fact in support of its order as required by Section 1005 of the Public Utility Law, Act of May 28, 1937, P.L. 1053, 66 P.S. ยง 1395. Dutchland Tours, Inc. v. Pennsylvania Public Utility Commission, 13 Pa. Commonwealth Ct. 54, 318 A.2d 394 (1974).

On remand, PUC reaffirmed its long-form order approving Thomas' application and granting the same certificate of public convenience, and entered the following findings of fact subject to our review:*fn2

"1. That applicant's financial situation renders him fit for obtaining a certificate of public convenience.

[ 19 Pa. Commw. Page 5]

"2. At the time the instant application was filed none of the tours offered in the area ...


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