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MOBILFONE NORTHEASTERN PENNSYLVANIA v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (06/25/82)

decided: June 25, 1982.

MOBILFONE OF NORTHEASTERN PENNSYLVANIA, INC., PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. HAZLE-TONE COMMUNICATION, INC., INTERVENOR



Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Application of Charles B. Shafer, t/a Radio Paging of Northeastern Pennsylvania and Hazle-Tone Communications, Inc., for approval of (1) the transfer by the former to the latter of all the rights and property of Radio Paging of Northeastern Pennsylvania, (2) the beginning by Hazle-Tone Communications, Inc., of the right to offer or furnish one-way mobile radio-telephone common carrier service to the public in portions of Lackawanna and Luzerne Counties (including Wilkes-Barre, Hazleton and Scranton) and (3) the abandonment of all mobile radio-telephone service by Charles B. Shafer, t/a Radio Paging of Northeastern Pennsylvania, No. A.100457,F.2.

COUNSEL

Robert E. Yetter, Metzger, Wickersham, Knauss & Erb, for petitioner.

Eric A. Rohrbaugh, Assistant Counsel, with him Joseph J. Malatesta, Jr., Chief Counsel, and Alfred N. Lowenstein, Deputy Chief Counsel, for respondent.

Sharon R. Bitzel, for intervenor.

Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case.

Author: Blatt

[ 67 Pa. Commw. Page 220]

Mobilfone of Northeastern Pennsylvania Inc., (Mobilfone) appeals an order of the Pennsylvania Public Utility Commission (PUC) adopting the decision of an Administrative Law Judge (ALJ) to grant the application of Hazle-Tone Communication, Inc., (Hazle-Tone) for a certificate of public convenience.

On March 2, 1979, transferor Charles B. Shafer, t/a Radio Paging of Northeastern Pennsylvania, and

[ 67 Pa. Commw. Page 221]

Hazle-Tone filed an application with the PUC so as to permit: (1) the transfer of all rights and property from Shafer to Hazle-Tone; (2) the beginning, by Hazle-Tone, of the right to offer one-way mobile telephone common carrier service to the public in portions of Lackawanna and Luzerne Counties; and (3) the abandonment of all mobile telephone service by Shafer.

A protest to the application was filed on March 26, 1979 by Mobilfone and the ALJ, after holding hearings, recommended that the application be approved in its entirety. The PUC, by an order entered April 11, 1980, adopted the ALJ's recommendation. On April 25, 1980, Mobilfone filed a petition for rehearing, reconsideration and rescission and on May 9, 1980 the PUC granted this petition and remanded the proceedings to the ALJ for further hearings. A remand hearing was held on August 6, 1980, and the ALJ rendered a decision on November 28, 1980, again recommending that the application be approved in its entirety. By an order entered March 24, 1981, the PUC adopted the initial decision of the ALJ, denied the protestant's exceptions to the initial decision, and approved the applicant's transfer application. This appeal followed.

In deciding whether or not to grant an application, the PUC is required to consider the statutory mandate as set forth by Section 1103(a) of the Public Utility Code (Code), 66 Pa. C.S. ยง 1103(a), which provides as follows:

A certificate of public convenience shall be granted by order of the commission, only if the commission shall find or determine that the granting of such certificate is necessary or proper for the ...


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