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MAKOVSKY BROS. v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (12/18/80)

decided: December 18, 1980.

MAKOVSKY BROS., INC., PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Pennsylvania Public Utility Commission v. Makovsky Bros., Inc., No. C-78050353.

COUNSEL

Sandor Engel, for petitioner.

R. Knickerbocker Smith, Jr., Assistant Counsel, with him John G. Alford, Deputy Chief Counsel, and George M. Kashi, Chief Counsel, for respondent.

Judges Wilkinson, Jr., MacPhail and Williams, Jr., sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 55 Pa. Commw. Page 436]

In this appeal common carrier Makovsky Bros., Inc. (Makovsky) seeks review of a corrected order of

[ 55 Pa. Commw. Page 437]

    the Pennsylvania Public Utility Commission (PUC) directing Makovsky to cease and desist from using its certificated vehicles in furtherance of its private "buy-sell" business operations.

Since about 1932 Makovsky has engaged in the business of buying and selling building materials. In June 1977 the PUC issued to Makovsky a certificate of public convenience to operate as a common carrier by motor vehicle. Under Makovsky's certificate it was authorized to transport certain building materials between points not exceeding 25 miles from point of origin to point of destination, in Lehigh, Northampton and certain other counties, but not including Philadelphia County. In addition to its operations as a certificated common carrier Makovsky continued in its private business of buying and selling building materials, including slag.

It is undisputed that on October 18, 1977, a PUC investigator stopped one of Makovsky's certificated trucks on a public highway in Northampton County, and the truck was carrying about 48,000 pounds of slag which Makovsky had purchased from the Bethlehem Mines Corporation in Northampton and Lehigh counties. It is also undisputed that the common carrier was in the process of transporting the slag to the American Slag Company in Philadelphia County, pursuant to a contract of sale.

Based on those facts, the PUC in June 1978 issued a complaint against Makovsky, charging the carrier with three infractions of the Public Utility Law,*fn1 including a violation of Section 202 by rendering service

[ 55 Pa. Commw. Page 438]

    to a territory different than that authorized by its certificate of public convenience.*fn2

After a hearing, an Administrative Law Judge entered an Initial Decision on January 19, 1979, by which the PUC complaint was sustained and Makovsky ordered to cease and desist from using its certificated vehicles for its private "buy-sell" operations. ...


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