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BRINKS v. PENNSYLVANIA PUBLIC UTILITY COMMISSION ( AT NO. 81-3-385) (03/11/83)

SUPREME COURT OF PENNSYLVANIA


decided: March 11, 1983.

BRINKS, INCORPORATED
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION (APPELLANT AT NO. 81-3-385), AND BROOKS ARMORED CAR SERVICE, INC., (APPELLANT AT NO. 81-3-387)

Nos. 81-3-385 & 81-3-387, Consolidated appeals from the Order of the Commonwealth Court of Pennsylvania, at No. 1612 C.D. 1979, entered November 6, 1980, reversing the Order of the Pennsylvania Public Utility Commission at Application Docket No. A.99633, Folder 2, entered July 2, 1979.

COUNSEL

Eric A. Rohrbaugh, Harrisburg, for appellant in No. 385 and 387.

William M. Barnes, George P. Williams, III, Philadelphia, for appellant in No. 387.

Herbert R. Nurick, Harrisburg, for Brinks, Inc. in Nos. 385, 387.

William M. Barnes, Philadelphia, for Brooks Armored Car Serv. in No. 385.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Former Chief Justice O'Brien did not participate in the decision of this case.

Author: Roberts

[ 500 Pa. Page 388]

OPINION OF THE COURT

This is an appeal by the Public Utility Commission and Brooks Armored Car Service, Inc., from an order of the Commonwealth Court reversing an order of the Commission which extended Brooks' authority to perform the services of a contract carrier between points in various named Pennsylvania counties. We conclude that the record adequately supports the Commission's determination that Brooks is fit,

[ 500 Pa. Page 389]

    willing, and able to perform the authorized services. Hence we reverse the order of the Commonwealth Court and reinstate the order of the Commission.

This action began on March 29, 1976, when Brooks, a Delaware corporation, filed an application with the Commission seeking a permit authorizing it "[t]o 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 and Philadelphia National Bank," between points in the forty-four counties in Pennsylvania which comprise the Third Federal Reserve District.*fn1 By this application Brooks sought to augment an application filed on January 20, 1976, in which Brooks had sought to operate an armored car service for Provident National and Girard Banks between points in the counties of Philadelphia, Delaware, Chester, Montgomery, Bucks, Berks, Lehigh and Northampton. That application was granted by the Commission on April 20, 1978.

Protests to Brooks' application were filed by Brinks, Inc., Purolator Courier Corp., and Purolator Security, Inc. The protests were based on the activities of an affiliate of Brooks, WFB, Inc., a company owned by William F. Brooks, Sr., who also owns 85% of Brooks. In 1974, WFB obtained a P.U.C. permit authorizing it "[t]o transport, as a class B carrier, property between various points in the City and County of Philadelphia." Pursuant to this authority, WFB began operating an armored car service, transporting monies, securities, and other valuables between points in Philadelphia. On October 17, 1977, the Commonwealth Court held that WFB's armored car service was not within the scope of the authority conferred by the property certificate.

[ 500 Pa. Page 390]

Craig, J., dissenting) agreed with Brinks and, accordingly, reversed the Commission's order. Brinks, Inc. v. Pa. P.U.C., 54 Pa. Commw. 452, 421 A.2d 1244 (1980).*fn2 Brooks and the Commission simultaneously filed petitions for allowance of appeal, both of which were granted and later consolidated.

At the outset, we agree with the Commonwealth Court that, once Brooks became aware of the Commonwealth Court's ruling in Purolator, Brooks could have no bona fide misunderstanding of the legal status of WFB's intrastate armored car operations. Although counsel for Brooks has throughout the proceedings attempted to take the blame for Brooks' manifest disregard of the Commonwealth Court's order, the record is clear that Brooks was made aware of the court's ruling and understood its consequences.

Nonetheless, we believe that the Commonwealth Court erred in deeming WFB's post- Purolator operations to be conclusive of the question of Brooks' present fitness. Our case law is clear that, although a favorable finding of fitness may not be based upon evidence of the quality of service conducted in willfull violation of a court order or the Commission's authority, the mere fact of prior operation in violation of a court order or the Commission's authority does not preclude a carrier from obtaining lawful authority in a subsequent proceeding before the Commission. See Bunting Bristol Transfer, Inc. v. Pa. P.U.C., 418 Pa. 286, 210 A.2d 281 (1965); D.F. Bast, Inc. v. Pa. P.U.C., 397 Pa. 246, 154 A.2d 505 (1959). See also Gettysburg Tours, Inc. v. Pa. P.U.C., 42 Pa. Commw. 399, 400 A.2d 945 (1959); Johnstown-Pittsburgh Express v. Pa. P.U.C., 5 Pa. Commw. 521, 291 A.2d 545 (1972); Lancaster Transportation Co. v. Pa. P.U.C., 181 Pa. Super. 129, 124 A.2d 380 (1956). Thus, while WFB's continuing to haul money in deliberate disregard of the Commonwealth

[ 500 Pa. Page 392]

Court's order gave rise to a negative inference concerning Brooks' fitness, the Commission could still have granted the requested contract carrier authority without abusing its discretion, so long as the Commission had before it positive evidence of Brooks' fitness independent of the evidence relating to the period of unlawful operation.*fn3

The record is clear that the Commission's determination of fitness in this case was not predicated solely on evidence relating to WFB's post- Purolator operations. Although all of the supporting banks had used WFB's service both before and after the Commonwealth Court's Purolator decision, most of the supporting banks testified on the basis of the interstate armored car service which Brooks had provided for them since the 1950's. These banks classified Brooks' service as either "very good," "very fine," "excellent," or "top notch," and stated that they would use Brooks' intrastate service if the application were granted. In addition, three supporting banks -- Continental, Fidelity and Philadelphia National -- expressed dissatisfaction with existing service. As this evidence amply supports the Commission's determination of fitness, the order of the Commonwealth Court must be reversed and the order of the Commission reinstated. See Lancaster Transportation Co. v. Pa. P.U.C., supra.*fn4

[ 500 Pa. Page 393]

Order of the Commonwealth Court reversed and order of Public Utility Commission reinstated.


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