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APPLICATIONS L.P. TRANSPORTATION v. MATLACK (07/06/76)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 6, 1976.

IN RE: APPLICATIONS OF L.P. TRANSPORTATION, INC. AND H.R. RITTER TRUCKING CO., INC. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION
v.
MATLACK, INC., COASTAL TANK LINES, INC. AND CHEMICAL LEAMAN TANK LINES, INC., APPELLANTS. L.P. TRANSPORTATION, INC. AND H.R. RITTER TRUCKING CO., INC., INTERVENING APPELLEES

Appeal from the Orders of the Pennsylvania Public Utility Commission in cases of Application of L.P. Transportation, Inc., a corporation of the State of New York, Docket No. 99089; and Application of H.R. Ritter Trucking Co., trading and doing business as H.R. Ritter Trucking Co., Inc., a corporation of the State of New Jersey, Docket No. 99091.

COUNSEL

William E. Zerber, with him Robert W. Small, R. Bruce Whitney, and, of counsel, Morgan, Lewis & Bockius, for appellants.

R. Knickerbocker Smith, Jr., Assistant Counsel, with him Alfred N. Lowenstein, Assistant Counsel, and Edward J. Morris, Counsel, for appellee.

John M. Musselman, with him, of counsel, Rhoads, Sinon & Reader, for intervening appellees.

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

Author: Wilkinson

[ 25 Pa. Commw. Page 413]

This is an appeal from two orders of the Pennsylvania Public Utility Commission (PUC) granting certificates of public convenience to L.P. Transportation, Inc., (LPTI) and H.R. Ritter Trucking Co. (Ritter). We reverse.

On December 13, 1974 (at Application Docket No. 99091) and on January 9, 1975 (at Application Docket No. 99089), respectively, Ritter and LPTI filed with the PUC similar applications for certificates of public convenience seeking authority: "To transport, as a [common] carrier, liquified petroleum gas [LPG] from facilities located at the Eagle Terminal of Texas

[ 25 Pa. Commw. Page 414]

Eastern Transmission Corporation, Allegheny Pipeline System, in the Township of Upper Uwchlan, Chester County to points in Pennsylvania." The applications were protested by appellants, three trucking concerns already certificated by the PUC as common carriers to transport LPG in the application area, and, consequently, were consolidated for the purpose of hearing. In February and April, 1975, hearings were held, following which, by short-form orders entered October 10 and 14, 1975, the PUC approved the respective applications of LPTI and Ritter and granted them certificates of public convenience. Appellants filed an appeal with this Court in which LPTI and Ritter were permitted to intervene as party appellees. The PUC, thereafter, on December 29, 1975, entered two long-form orders affirming its earlier grants of the certificates.

[ 25 Pa. Commw. Page 415]

Section 203(a) of the Public Utility Law, Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. ยง 1123(a), provides that "[a] certificate of public convenience shall be granted by order of the commission, 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 . . . ." An applicant for a certificate of public convenience carries the burden of proving (1) a public need for the proposed service, (2) the inadequacy of the existing service to satisfy the need, and (3) the capacity of the applicant to satisfactorily meet the need. Pennsylvania Public Utility Commission v. Pennsylvania Radio Telephone Corp., 20 Pa. Commonwealth Ct. 591, 342 A.2d 489 (1975); Dutchland Tours, Inc. v. Pennsylvania Public Utility Commission, 19 Pa. Commonwealth Ct. 1, 337 A.2d 922 (1975); John Gibbons, Inc. v. Pennsylvania Public Utility Commission, 18 Pa. Commonwealth Ct. 114, 334 A.2d 806 (1975); Seiferd v. Pennsylvania Public Page 415} Utility Commission, 12 Pa. Commonwealth Ct. 85, 315 A.2d 320 (1974).

Appellants essentially argue that LPTI and Ritter failed to meet their burden as to all three of the foregoing requirements, and, additionally, contend that the proposed service is interstate, rather than intrastate, in nature, thus depriving the PUC of jurisdiction to grant motor carrier authority. However, we need not decide all the issues raised by appellants, but can dispose of this case on the narrow question of whether LPTI and Ritter successfully proved that the existing service provided by appellants is inadequate.

[ 25 Pa. Commw. Page 416]

We have carefully examined the voluminous record and the numerous findings of fact made by the PUC in its two long-form orders. It appears that certain shippers of LPG, who appeared before the PUC in support of the LPTI and Ritter applications, will require additional delivery service in the application area in order to meet foreseeable needs resulting from an expected upward shift in the volume of LPG transmitted to the Eagle Terminal. The record and findings, however, provide little, if any, basis on which to conclude that the service offered by appellants is inadequate to meet the additional service requirements. Indeed, the PUC specifically found that appellants "presently meet liquified petroleum gas transportation needs in the application area";*fn1 that the service provided by appellants "has been adequate in most instances"*fn2 and generally satisfactory;*fn3 and that Page 416} appellants indicated that they either had or could acquire adequate equipment to meet the anticipated increase in traffic at Eagle.*fn4 Consequently, we are compelled to hold that LPTI and Ritter failed to carry their burden of proving the existing service to be inadequate, and that they, therefore, are not entitled to certificates of public convenience.

Accordingly, we will enter the following

Order

And Now, July 6, 1976, the orders of the Pennsylvania Public Utility Commission, entered December 29, 1975, at Application Docket Nos. 99089 and 99091, granting L.P. Transportation, Inc., and H.R. Ritter Trucking Co., respectively, certificates of public convenience, are hereby reversed; and the said certificates are hereby vacated.

Disposition

Reversed.


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