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

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 ...


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