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COMMONWEALTH PENNSYLVANIA v. PENNSYLVANIA RADIO TELEPHONE CORPORATION (08/01/75)

decided: August 1, 1975.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, AND INSTANT COMMUNICATION, INC., INTERVENING APPELLEE,
v.
PENNSYLVANIA RADIO TELEPHONE CORPORATION, APPELLANT



Appeal from the Order of the Pennsylvania Public Utility Commission in case of In Re: Application of Instant Communication, Inc., for approval of the right to begin to offer, render, furnish or supply mobile radio-telephone common carrier service to the public in the City of Reading, Berks County, and vicinity, No. 97866.

COUNSEL

Lewis S. Kunkel, Jr., with him Thomas B. Schmidt, III, and Pepper, Hamilton & Scheetz, for appellant.

Susan M. Shanaman, Assistant Counsel, with her Peter W. Brown, Counsel, for appellee.

M. Mark Mendel, with him Harris T. Bock, and Mendel and Schwartz, P.C., for appellee.

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

Author: Rogers

[ 20 Pa. Commw. Page 593]

This is the appeal of Pennsylvania Radio Telephone Corporation (PRTC) from an order of the Pennsylvania Public Utility Commission (Commission) entered November 6, 1974 granting to Instant Communication, Inc. (Instant) a certificate of public convenience to provide mobile radio-telephone common carrier service in the City of Reading, Berks County, and vicinity.

On April 9, 1973, pursuant to Section 203 of the Public Utility Law, Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. § 1123, Instant filed for a certificate of public convenience to provide three types of mobile radio-telephone common carrier service in the Reading area: tone-only paging, tone and voice paging, and mobile service telephone. Protests were filed by PRTC and by Denver and Ephrata Telephone and Telegraph Company, Radio Broadcasting Company, and Conestoga Telephone and Telegraph Company (Conestoga). The protest of Radio Broadcasting Company was subsequently withdrawn.*fn1 Hearings were conducted before an examiner of the Commission on four different occasions between February and July of 1974. Instant, PRTC and Conestoga Telephone and Telegraph Company each presented the testimony of numerous witnesses and documentary evidence. From the order of the Commission granting Instant the requested certificate, only PRTC appealed. Instant was granted leave to intervene in the appeal.

Our limited scope of review in these matters is expressly set forth in the Public Utility Law. Section 1107, 66 P.S. § 1437 provides pertinently:

[ 20 Pa. Commw. Page 594]

"The order of the Commission shall not be vacated or set aside, either in whole or in part, except for error of law or lack of evidence to support the finding, determination, or order of the Commission, or violation of constitutional rights."

See Seiferd v. Pennsylvania Public Utility Commission, 12 Pa. Commonwealth Ct. 85, 315 A.2d 320 (1974). Unless the Commission's order and findings are totally without support in the record, based on an error of law or unconstitutional, we are without authority to reverse. The Legislature did not intend that the courts should weigh the factors entering in the granting of a certificate of public convenience. Johnstown-Pittsburgh Express, Inc. v. Pennsylvania Public Utility Commission, 5 Pa. Commonwealth Ct. 521, 525, 291 A.2d 545, 547-548 (1972).

Section 203(a), as amended, 66 P.S. § 1123(a), of the Public Utility Law provides that a certificate of public convenience may be granted "only if and when the commission shall find or determine that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public. . . ." All parties here recognize that the applicant bears the burden of proving (1) a need for the proposed service, (2) the inadequacy of the existing service, and (3) the capacity, both financial and technical, of the applicant to meet the need in satisfactory fashion. See Dutchland Tours, Inc. v. Pennsylvania Public Utility Commission, 19 Pa. Commonwealth Ct. 1, 337 A.2d 922 (1975). PRTC ...


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