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B.B. MOTOR CARRIERS v. COMMONWEALTH PENNSYLVANIA (06/08/78)

decided: June 8, 1978.

B.B. MOTOR CARRIERS, INC. ET AL., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT; SMITH HAULING, INC., INTERVENOR



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Application of Smith Hauling, Inc., Application Docket No. 96241, Folder 2, dated April 1, 1977.

COUNSEL

Christian V. Graf, with him Jerome Solomon, for appellants.

William T. Hawke, Assistant Counsel, with him Alfred N. Lowenstein, Assistant Counsel, and Barnett Satinsky, Chief Counsel, for appellee.

R. Edward Ferraro, for intervening appellee.

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

Author: Disalle

[ 36 Pa. Commw. Page 27]

This case comes before this Court upon a petition to review an order of the Pennsylvania Public Utility

[ 36 Pa. Commw. Page 28]

Commission (PUC) granting a certificate of public convenience to Smith Hauling, Inc. (Smith). Smith had filed an application with the PUC for authority

To transport machinery which because of its size or weight, requires special handling or the use of special equipment, such as a winch truck or winch tractors, pole or extendible trailers, flatbed trailers or low-boy trailers or carry-alls, between points in that part of Pennsylvania west of the eastern boundaries of Potter, Clinton, Centre, Blair, and Bedford Counties.

After extensive hearings the PUC issued the certificate of public convenience. A number of hauling companies (Protestants) appeared before the PUC and vigorously opposed the application of Smith, and have pursued their protest on appeal to this Court. The hearings on the Smith application commenced in 1974 and concluded with the issuance of the certificate for heavy hauling on April 4, 1977.

The record reveals that Smith has provided open and continuous transportation hauling service since its incorporation in 1967 under two separate colors of authority. From the date of its inception Smith provided heavy hauling service under color of authority acquired by a lease arrangement, hereafter referred to as "lease authority," with McGaughey Bros., Inc., a carrier authorized to transport heavy equipment. In a separate proceeding, the PUC found that the lease arrangement between Smith and McGaughey Bros., Inc., did not give any authority to Smith to transport heavy equipment. The PUC issued a cease and desist order on August 26, 1976, in that collateral proceeding. It found, however, that Smith had no ...


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