Appeal from the Order of the Pennsylvania Public Utility Commission in case of Application of S. Wolf's Sightseeing Tours, Inc., for amendment to its common carrier certificate, Application Docket No. 97781, Folder 1, Am-A, entered December 13, 1977.
James D. Campbell, Jr., with him Nauman, Smith, Shissler & Hall, for petitioner.
Robert A. Christianson, Assistant Counsel, with him Alfred N. Lowenstein, Assistant Counsel, and Kathleen Herzog Larkin, Chief Counsel, for respondent.
R. James Reynolds, Jr., with him Lewis S. Kunkel, Jr.; Pepper, Hamilton & Scheetz; John R. White and Campbell & White, for intervening respondent.
Judges Rogers, Blatt and DiSalle, sitting as a panel of three. Opinion by Judge DiSalle.
[ 42 Pa. Commw. Page 400]
Gettysburg Tours, Inc., (Protestant) has appealed from the order of the Pennsylvania Public Utility Commission (PUC) granting to S. Wolf's Sightseeing Tours, Inc., (Applicant) a certificate of public convenience permitting Applicant to "transport, as a common carrier, groups and parties of persons on special excurstions [sic] and tours and sightseeing trips from the borough of Gettysburg and Township [sic] of Straban and Cumberland, Adams County, to the Gettysburg Battlefield in the borough of Gettysburg and the townships of Straban and Cumberland, Adams County." Protestant raises two specific issues on appeal: (1) whether the PUC may grant a certificate of public convenience in the absence of a showing that the existing service is inadequate;*fn1 and (2) whether the PUC may grant a certificate of public convenience where evidence indicates that an applicant is unfit to provide increased service.
Given the narrowness of the issues raised, a full rendition of the facts is unnecessary. Suffice it to say that both Applicant and Protestant had been providing tour service of the Gettysburg Battlefield for some time, although the type of tour, the vehicles used, as well as the areas served, differed in certain respects.
[ 42 Pa. Commw. Page 401]
Applicant sought to expand its existing, authorized service so as to permit it to pick up passengers in the borough of Gettysburg and two adjacent townships. The Protestant challenged Applicant's proposed expansion.
The PUC found that Applicant established that there was a public need for additional tour service in the area of Applicant's proposed expansion and that the expansion, therefore, was necessary and proper for the service, accommodation and convenience of the public. The PUC, while noting that Applicant desired to make its tour service more accessible to a larger number of patrons, found that the addition of Applicant's proposed service would offer the public a meaningful "choice" in available tour service. Not only did Applicant's tour differ from Protestant's with respect to the route and historical emphasis, Applicant's vehicles were air-conditioned while Protestant's were not. Considering market dynamics, the PUC also found that Applicant's proposed expansion would not result in undue economic deprivation to Protestant but rather would spur "healthy economic competition" between the parties. Finally, the PUC did not believe that five instances of illegal rendition of service, for which Applicant had been summarily cited and fined, necessarily precluded Applicant from expanding its service. The PUC found that the public need evidenced by Applicant for the services sought outweighed any prejudice attributable to Applicant as a result of its past transgressions.
Turning to Protestant's first argument, we note that Section 203(a) of the Public Utility Law (Law), Act of May 28, 1937, P.L. 1053, as amended, formerly 66 P.S. § 1123(a), repealed by the Act of July 1, 1978, P.L. , No. 116 (see 66 Pa.C.S. § 1103(a)), provides that "[a] certificate of ...