Appeal from the Order of the Pennsylvania Public Utility Commission in case of Pennsylvania Public Utility Commission v. Durrell A. Chappell, Operator of DAC Community Service of Reading and Berks County, No. 21431.
Calvin Lieberman, with him Stephen B. Lieberman, Calvin Lieberman & Associates, for petitioner.
R. Knickerbocker Smith, Jr., Assistant Counsel, with him John G. Alford, Deputy Chief Counsel, Joseph Malatesta, Jr., and George M. Kashi, Chief Counsels, for respondent.
Judges Mencer, Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.
Durrell A. Chappell (petitioner), the owner-operator of the DAC Community Service of Reading and Berks County (DAC), appeals here from an order of the Pennsylvania Public Utility Commission (PUC)
which directed him to secure a certificate of public convenience.
Michael F. Feeney, a partner in the Reading Area Medi-Taxi (Reading), filed a complaint with the PUC regarding advertisements in which the DAC had announced the expanding of its emergency and non-emergency medical transportation to include transportation of ambulatory, wheelchair-confined, handicapped and elderly persons to any destination. On December 9, 1975, the PUC instituted a complaint against the petitioner, alleging that the DAC had violated Sections 201 and 202 of the Public Utility Law (Prior Law), Act of May 28, 1937, P.L. 1053, as amended, formerly, 66 P.S. §§ 1121 and 1122,*fn1 by providing and holding itself out as providing transportation for compensation without a certificate of public convenience.
At a hearing held on December 20, 1977, the petitioner testified that when, prior to knowing of the complaint of the PUC, he had received a letter from Reading's attorney informing him that DAC's advertisement referred to services requiring a PUC license, the DAC had withdrawn its offer to provide services "to any destination" and, on the advice of counsel, had thereafter confined the non-emergency phase of its operations solely to transporting non-ambulatory injured and ill persons to doctors' offices, hospitals, rehabilitation centers and convalescent homes for medical treatment, using three ambulances and a station wagon capable of being used as an ambulance, all of which are medically equipped and manned by a driver and an attendant, both of whom are certified to administer first aid.
The petitioner asserted that the DAC was operating under the statutory exemption provided by Section 2(6)(i) of the Prior Law, formerly, 66 P.S. § 1102(6)(i), now found in Section 102(9) of the Public Utility Code (Code), 66 Pa. C.S. § 102(9), which exempts from the definition of common carrier by motor vehicle*fn2 "any person or corporation who or which furnishes transportation for any injured, ill or dead person." The PUC held, however, that the exemption afforded by Section 102(9) of the Code applied only to transportation of any injured or ill person for purposes of emergency medical treatment, and that historically the PUC had always issued certificates of public convenience to carriers engaged in transportation of injured and ill persons for non-emergency purposes. It cited Reading's license as an example.*fn3 The administrative law judge's decision, affirmed with minor modifications by the PUC, concluded ...