Appeals from the Order of the Pennsylvania Public Utility Commission in case of Paul E. Davidson, Mahlon E. Davidson and Harold Davidson, Jr., t/a Davidson Brothers -- Amendment to permit transportation of coal from points in the counties of Centre, Clearfield and Clinton, to points in Pennsylvania, Docket No. A.80975, Folder 1, Am-H.
Herbert R. Nurick, McNees, Wallace & Nurick, for petitioner.
Eric A. Rohrbaugh, Assistant Counsel, with him Joseph J. Malatesta, Jr., Chief Counsel, and Alfred N. Lowenstein, Deputy Chief Counsel, for respondent.
J. Bruce Walter, Rhoads, Sinon & Hendershot, for intervenors.
Judges Rogers, Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt. This decision was reached prior to the resignation of Judge Mencer. Judge Palladino did not participate in the decision in this case. Dissenting Opinion by Judge Rogers.
[ 66 Pa. Commw. Page 382]
Samuel J. Lansberry, Inc. (protestant) appeals an order of the Pennsylvania Public Utility Commission
[ 66 Pa. Commw. Page 383]
(PUC) granting the intervenor, Paul E. Davidson (applicant) a certificate of public convenience. The certificate granted, inter alia, authority for the applicant to transport coal from points in Clearfield and Centre Counties to points in Chester County.*fn1
On October 6, 1978, the applicant filed an application with the PUC seeking authority:
1. To transport, as a Class D carrier, coal, for Half-Way Coal Yard, t/a S&D Trucking Co., from points in the Townships of Boggs, Burnside and Snow Shoe, Centre County, and the Townships of Brady, Knox and Lawrence, Clearfield County, to points in the City of Erie, Erie County, and the City of New Castle, Lawrence County.
2. To transport, as a Class D carrier, coal, for Half-Way Coal Yard t/a S&D Trucking Co., from points in the Townships of Brady, Knox and Lawrence, Clearfield County, to points in the Townships of Allen and Upper Mount Bethel, Northampton County.
3. To transport, as a Class D carrier, coal for Half-Way Coal Yard, t/a S&D Trucking Co., from points in the Townships of Boggs, Burnside and Snow Shoe, Centre County, and the Townships of Brady, Knox and Lawrence, Clearfield County, to points in the Townships of Charlestown and East Whiteland, Chester County.
4. Provided that no service shall be provided hereunder for the account of Erickson of Johnstown, Inc.
[ 66 Pa. Commw. Page 3845]
. Provided that no right, power or privilege is granted to provide transportation from the facilities of Bradford Coal Co., Island Creek Co., and Coal Hill Mining Co., Inc., in Clearfield County to points in the counties of Berks, Chester, and Northampton.
The protestant, among other carriers, filed protests to this application, and the case was referred to an Administrative Law Judge (ALJ). After holding a hearing, the ALJ granted the application in an August 15, 1980 decision except for the above-emphasized portion of the third paragraph which sought authority to transport from points in the Townships of Boggs, Burnside, and Snow Shoe, Centre County, to points in Chester County. Due to this exclusion, the applicant filed exceptions on September 9, 1980, and the protestant filed a reply on September 25, 1980. These exceptions, however, were not ruled upon by the ALJ but rather were acted upon by the PUC in an order adopted December 4, 1980, and entered February 3, 1981. Such corrected order reversed*fn2 the ALJ's denial of authority to the applicant to transport coal from the points in Centre County to the points in Chester County enumerated supra, but otherwise affirmed his decision.
Before us*fn3 the protestant challenges only that segment of the PUC's corrected order which grants the applicant authority to transport from points in ...