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COMMONWEALTH PENNSYLVANIA v. PUROLATOR COURIER CORP. (04/08/76)

decided: April 8, 1976.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION
v.
PUROLATOR COURIER CORP., PUROLATOR SECURITY, INC., AND BRINK'S, INC., APPELLANTS. LINCOLN TRANSPORT, INC., INTERVENING APPELLEE



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Application of Lincoln Transport, Inc., Docket No. 91889, Folder 2, Am-A.

COUNSEL

James W. Patterson, with him, of counsel, Harper, George, Buchanan & Driver, for appellants.

William T. Hawke, Assistant Counsel, with him Edward J. Morris, Counsel, for appellee.

Arthur J. Diskin, for intervening appellee.

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

Author: Mencer

[ 24 Pa. Commw. Page 303]

Since August 8, 1972, Lincoln Transport, Inc. (Lincoln) has been authorized under a certificate of public convenience issued by the Pennsylvania Public Utility Commission (PUC) "to transport, as a Class D carrier, monies, securities, books of account, bank statements, checks, drafts, security instruments, and other valuables from the Three Rivers Bank & Trust Company located in the Borough of Jefferson, Allegheny County, to its customers in the counties of Allegheny, Butler, Beaver, Washington and Westmoreland, and vice versa." On February 4, 1975, Lincoln applied for a modification and amendment of its certificate of public convenience which would allow it "to transport, as a common carrier, monies, securities, books of account, bank statements, checks, drafts, security instruments, and other valuables between points in the counties of Allegheny, Butler, Beaver, Washington, Westmoreland, Fayette and Armstrong." The PUC, after reviewing testimony from five hearings held between March and October of 1974, issued a "short-form" order granting the expansion of authority requested. At those hearings, Purolator Courier Corp., Brinks, Incorporated, and Purolator Security, Inc. (appellants) protested the issuance of an expanded certificate to Lincoln and pursued their protest on appeal to this Court. The PUC adopted its "long-form" order on

[ 24 Pa. Commw. Page 304]

October 1, 1975, in which it stated its findings of fact and conclusions of law in support of its extension of Lincoln's authority.

A comparison of Lincoln's original and amended certificates reveals that the net effect of the modification is to allow Lincoln to operate in two additional counties, Fayette and Armstrong, and, more importantly, to dispense with the necessity of beginning and ending each trip at the Three Rivers Bank. In short, the PUC permitted Lincoln to "cross-haul" the specified commodities throughout seven counties of Western Pennsylvania.

All parties correctly recognize that the PUC, in considering an application for enlargement of operating privileges, has the duty, under Section 203 of the Public Utility Law*fn1 to determine whether "the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public. . . ." (Emphasis added.) The applicant, of course, has the burden of proving the need for the proposed service, the inadequacy of existing service, and its capacity to meet the public need. Byerly v. Pennsylvania Public Utility Commission, 440 Pa. 521, 270 A.2d 186 (1970); Dutchland Tours, Inc. v. Pennsylvania Public Utility Commission, 19 Pa. Commonwealth Ct. 1, 337 A.2d 922 (1975). In order to establish need, it is not necessary to prove an absolute necessity or present demand for the service in every part of the territory involved. The applicant must establish to the satisfaction of the PUC only that such service is reasonably necessary for the accommodation and convenience of the public. Carl R. Bieber, Inc. v. Pennsylvania Public Utility Commission, 3 Pa. Commonwealth Ct. 236, 281 A.2d 351 (1971); McNaughton Bros., Inc. v. Pennsylvania Public Utility Commission, 2 Pa. Commonwealth Ct. 319, 278 A.2d 186 (1971).

[ 24 Pa. Commw. Page 305]

Appellants contend that the evidence presented by Lincoln at the five hearings could not support the grant of increased authority made by the PUC. They contend, first, that there is no substantial evidence to support the grant to appellants of the right to carry "monies" between points in the seven counties. Secondly, appellants aver that the so-called "request testimony" indicating public need was not competent because it did not ...


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