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decided: November 6, 1980.


Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Application of Brooks Armored Car Service, Inc., a corporation of the State of Delaware, for the right to begin to transport, as a contract carrier, by motor vehicle, coin, currency, precious metals, negotiable and non-negotiable instruments, and other items of unusual value, for Continental Bank, Federal Reserve Bank of Philadelphia, Fidelity Bank, Matthey Bishop, Inc., Philadelphia National Bank, between points in the Counties of Philadelphia, Delaware, Chester, Montgomery, Bucks, Berks, Lehigh, Northampton, McKean, Elk, Clearfield, Cambria, Bedford, Fulton, Huntingdon, Centre, Clinton, Potter, Tioga, Lycoming, Union, Mifflin, Snyder, Juniata, Perry, Cumberland, Adams, Franklin, Sullivan, Montour, Northumberland, Dauphin, York, Wyoming, Wayne, Columbia, Luzerne, Schuylkill, Lebanon, Lancaster, Susquehanna, Lackawanna, Monroe and Carbon, Application Docket No. 99633, F.2.


Herbert R. Nurick, McNees, Wallace & Nurick, for petitioner.

Eric A. Rohrbaugh, Assistant Counsel, with him Alfred N. Lowenstein, Deputy Chief Counsel, and George M. Kashi, Chief Counsel, for respondent.

William M. Barnes, with him George P. Williams, III, Schnader, Harrison, Segal & Lewis, for intervenor.

Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Wilkinson, Jr. Dissenting Opinion by Judge Craig.

Author: Wilkinson

[ 54 Pa. Commw. Page 454]

The petitioner would have this Court reverse the order of respondent, Public Utility Commission (Commission) granting intervenor (Brooks) certain motor carrier operating authority as a contract carrier on the grounds that Brooks did not establish its fitness.*fn1 We agree and reverse.

Brooks has what it calls an affiliate (WFB) which has contract carrier rights in Philadelphia; WFB is wholly owned by William F. Brooks, Sr., who also owns 85% of the shares of Brooks. The officers and directors of Brooks and WFB are the same or substantially

[ 54 Pa. Commw. Page 455]

    the same. The Commission expressly does not take the position that Brooks and WFB "were not closely interconnected corporations." Indeed, in our opinion, the actions of one with regard to fitness certainly would apply to the other. It is the position of Brooks and the Commission that all actions of each were in good faith and did not reflect adversely on the question of Brooks' fitness.

Petitioner has offered evidence to show that both Brooks and WFB have so knowingly and willfully performed illegal services and otherwise violated their authority under their existing intrastate and interstate rights as to render Brooks unfit to be granted the additional intrastate rights in issue here. On all but one of these alleged violations the matter of good faith is contested and, as to them, we are bound by the Commission's findings. However, there is other action of WFB and, under the circumstance outlined above we treat as actions of Brooks, that so clearly establish Brooks unfitness as to require us to hold that the Commission abused its discretion in finding Brooks fit.

The action to which we refer is continuing to operate on the basis that its authority to haul property included the right to haul money after this Court had ruled otherwise. This question was argued twice before this Court -- once before a panel and once before the Court en banc. By a divided Court, 4-2, we held in an opinion filed October 17, 1977 that there was no authority to deliver money. Nevertheless, although no supersedeas was obtained and the Supreme Court of Pennsylvania refused the requests for an allowance of appeal on March 1, 1978, WFB continued to haul money until the Commission entered a cease and desist order on April 13, 1978. Delivery of money was immediately taken over by Brooks.

At oral argument counsel for intervenor attempted to accept responsibility and blame for this completely

[ 54 Pa. Commw. Page 456]

    and obviously unacceptable refusal to abide by this Court's ruling on the theory that he should have advised his client to stop delivering money. Of course, he agrees he had advised his client of this Court's order and the Supreme Court of Pennsylvania's order.

It seems almost frivolous to argue that a corporation is fit to hold enlarged rights approved by this Court when it attempts to justify violating our previous rulings concerning the extent of its authority by arguing that although notified of our ruling its lawyer failed to say it was bound by it! Even after the order of the Supreme Court of Pennsylvania entered March 1, 1978 it continued to operate beyond its authority until ordered to cease by the Commission on April 13, 1978. The parties do not contest, nor could they, that the burden was on Brooks to establish its fitness. See ...

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