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NATIONAL RETAIL TRANSPORTATION v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (09/01/87)

decided: September 1, 1987.

NATIONAL RETAIL TRANSPORTATION, INC., PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Application of National Retail Transportation, Inc. -- No. A-102615, F.1, Am-B; International Distribution Centers, Inc. v. National Retail Transportation, Inc., No. A-102615C831.

COUNSEL

Edward L. Ciemniecki, with him, James W. Patterson, Rubin, Quinn & Moss, for petitioner.

Alan Kohler, Assistant Counsel, with him, Michael C. Schnierle, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.

Christian V. Graf, with him, David H. Radcliff, Graf, Knupp & Andrews, P.C., for intervenor, Silver Line, Inc.

Judges Doyle and Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino.

Author: Palladino

[ 109 Pa. Commw. Page 74]

National Retail Transportation, Inc. (NRT) petitions for review of an order of the Pennsylvania Public Utility Commission (PUC) which adopted an Administrative Law Judge's initial decision and ruling on exceptions sustaining a complaint filed by Silver Line, Inc. (Silver Line) and denying NRT's application seeking additional common carrier operating rights.

NRT, on January 25, 1982, was granted operating rights as a Class D carrier by the PUC to transport dresses or dress materials, clothing, garments and garment materials and supplies used in the manufacture thereof between points in Pennsylvania located in and east of the counties of Tioga, Lycoming, Clinton, Centre, Huntingdon and Fulton. These operating rights were subject to two conditions:

Provided that no right, power or privilege is granted to provide service between cutting, sewing, assembly and manufacturing plants between points in the counties of Lehigh, Northampton,

[ 109 Pa. Commw. Page 75]

Carbon, Monroe, Luzerne, Schuylkill and Lackawanna.

Provided that no right, power or privilege is granted to transport clothing or wearing apparel on hangers, hanger packs and flat packs, in vehicles specially equipped with stationary hanger racks, from points in the city and county of Philadelphia to retail stores located within an airline distance of twenty-five (25) statute miles of the Philadelphia City Hall.

The second restriction enumerated above, upon application by NRT, was removed by the PUC on November 29, 1983. NRT filed an additional application in 1983 to amend its certificate by having the first restriction removed so as to obtain the authority to transport dresses or dress materials, etc., between garment-producing facilities within the seven northeastern Pennsylvania counties of Lehigh, Northampton, Carbon, Monroe, Luzerne, Schuylkill and Lackawanna (seven counties). This application was protested by two carriers: International Distribution Centers, Inc. (IDC) and Silver Line, Inc. (Silver Line).

On July 5, 1983, IDC filed a Complaint against NRT alleging that NRT had been providing service within the seven counties which was illegal*fn1 and beyond the

[ 109 Pa. Commw. Page 76]

    scope of its existing authority. Because of similarity of facts and issues, the Administrative Law Judge consolidated the application and complaint proceedings. Five hearings were held between August, 1983 and April, 1984. On July 11, 1984, NRT filed a Motion to Partially Dismiss the Application on Jurisdictional Grounds. On April 15, 1985, the Administrative Law Judge denied NRT's Motion to Partially Dismiss the Application on Jurisdictional Grounds, concluding that the transportation at issue was intrastate and therefore under the jurisdiction of the PUC. The Administrative Law Judge also sustained the Complaint and fined NRT, holding that NRT violated Section 1102 of the Code in performing three acts of unauthorized transportation. In addition, the Administrative Law Judge concluded that NRT had not met its burden of proving public need for the service and fitness of NRT to provide such service. Accordingly, the Administrative Law Judge denied the application for lack of proof of need and fitness.

NRT timely filed exceptions to the Initial Decision of the Administrative Law Judge who denied said exceptions concluding that no new considerations were offered by NRT which altered the findings and conclusions set forth in the Initial Decision. NRT then appealed

[ 109 Pa. Commw. Page 77]

    to the PUC which, by order of July 29, 1985, denied NRT's appeal and adopted the Initial Decision and Ruling on the Exceptions. Thereafter, NRT filed a Petition for Rescission and Reopening and a Petition for Stay of the PUC's Order. Both of these Petitions were denied by the PUC.

On appeal to this court, NRT argues: 1) that the PUC committed an error of law in assuming jurisdiction because the transportation at issue was interstate and not intrastate in nature; 2) that the PUC erred by excluding evidence of need of the transportation services because of the conclusion that the illegal service rendered by NRT was done so in bad faith; and 3) that the PUC ...


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