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decided: January 31, 1989.


Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Newcomer Trucking, Inc., Pitt-Ohio Express, Inc., Hammel's Express, Inc. v. Pittsburgh-Johnstown-Altoona Express, Inc., No. A-102956C871.


Christian V. Graf, with him, David H. Radcliff, Graf, Andrews & Radcliff, and Arthur J. Diskin, for petitioner.

Karen Oill Moury, Assistant Counsel, with her, H. Kirk House, Deputy Chief Counsel, and Daniel P. Delaney, Chief Counsel, for respondent.

John A. Pillar, Pillar and Mulroy, P.C., for intervenors.

Judges Craig and Palladino, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 123 Pa. Commw. Page 239]

Pittsburgh-Johnstown-Altoona Express, Inc. (PJAX or carrier), a common carrier by motor vehicle, holding certificates of public convenience issued by both the Pennsylvania Public Utility Commission (PUC or commission) and the federal Interstate Commerce Commission (ICC), has petitioned for review of an opinion and order of the PUC that imposed a fine of $28,040 on PJAX and suspended its PUC-issued certificate of public convenience for a period of 120 days.

This case began with a complaint filed with the PUC against PJAX by Newcomer Trucking, Inc., Pitt-Ohio Express, Inc. and Hammel's Express, Inc. (complainants). The original complaint and a later amendment alleged numerous specific instances of transportation of goods by PJAX between points within Pennsylvania, assertedly without appropriate authority from the PUC and in violation of a "Settlement Stipulation" which PJAX had very recently signed to resolve an earlier complaint involving the same parties, among others, in which PJAX had acknowledged that it lacked PUC authority to serve a long list of specific areas in Pennsylvania and had agreed not to serve those areas.

After some initial unresponsive answers, PJAX ultimately admitted performing all of the service alleged, but PJAX raised the affirmative defense that all of it was legal. As the commission and the complainants (intervenors on this appeal) note, the burden of proof as to an affirmative defense rests with the party asserting that defense. Baldwin v. Devereux Schools, 302 Pa. 569, 154 A. 21 (1931).

The Administrative Law Judge (ALJ) who heard the case determined that the complainants proved a total of 1,352 violations of the Public Utility Code; he assessed fines of $20 per violation or $27,040. In addition, the ALJ imposed a penalty of $1,000 for discovery violations committed

[ 123 Pa. Commw. Page 240]

    by PJAX in the course of the proceedings before him.

The PUC denied exceptions filed by both sides to the ALJ's initial decision and adopted that initial decision in an opinion and order entered July 28, 1988. By order entered August 23, 1988, the commission denied the petitions of both PJAX and the complainants for reconsideration.

The issues presented are:

(1) Whether the PUC had jurisdiction to determine that shipments found to have been made between points in Pennsylvania but through another state were not legitimate exercises of a carrier's ICC authority, where the carrier possessed an ICC certificate that facially authorized such shipments and asserted a business justification for its practices that might conceivably be upheld, or whether jurisdiction to make such a determination lay with the ICC in the first instance;

(2) Whether the PUC erred by concluding that traffic handled for four specific companies constituted pooling arrangements that require PUC authority, rather than pool truck distribution traffic validly transported in interstate commerce;

(3) Whether the PUC had jurisdiction to determine that shipments the carrier made from warehouses in Allegheny County to other points in Pennsylvania were not legitimate exercises of its interstate authority where the goods arrived from out of state, were stored for an indefinite period at the warehouses, and then were directed to their ultimate destinations by the owners of the goods; and

(4) Whether the PUC correctly determined that certain concededly intrastate shipments were performed without proper PUC authority, where the carrier had entered into a Settlement Stipulation listing numerous areas that it could not serve and agreed not to serve,

[ 123 Pa. Commw. Page 241]

    despite the carrier's claim of other PUC-granted authority.

Our scope of review of a PUC order generally is limited to determining whether there was a violation of constitutional rights or an error of law and whether the findings of the agency are supported by substantial evidence. Chappell v. Pennsylvania Public Utility Commission, 57 Pa. Commonwealth Ct. 17, 425 A.2d 873 (1981).

1. Shipments Between Points In Pennsylvania Through Another State

PJAX operates five terminals. The main terminal is in Pittsburgh, and it has been operational since February, 1984. Other terminals are located in Baltimore, Maryland (established in August, 1984), Cleveland, Ohio (established in August, 1985), Niles, Ohio (established in May, 1987) and Harrisburg (established in October, 1987). From Pittsburgh PJAX operates "Peddle"*fn1 runs to Morgantown, Weirton, Wheeling and Parkersburg, all in West Virginia, to Cumberland, Maryland, and to two New York locations. The trucks are loaded in Pittsburgh, proceed to the above areas, make deliveries and occasional pickups there, make pickups and deliveries within various Pennsylvania counties (Fayette, Greene, Beaver, Washington, Bedford, Fulton and Bradford) and then return to Pittsburgh.

In addition, road runs operate from Pittsburgh to Baltimore, Cleveland and Niles. At the Baltimore terminal the road run from Pittsburgh is broken down, consolidated with freight brought in from points in Maryland, Virginia, West Virginia and the District of Columbia and then distributed to points in southeastern and south central Pennsylvania. The trucks make pickups and deliveries

[ 123 Pa. Commw. Page 242]

    in those areas. The pickup freight returns to Baltimore and then proceeds to Pittsburgh on a road run. The Cleveland terminal collects freight from points in Ohio and New York and from the Pittsburgh road run. The trucks from there then make deliveries and pickups in the areas of Erie, Meadville and Warren. The Niles terminal delivers freight from areas in Ohio and from the Pittsburgh road run, making pickups and deliveries in the areas of Oil City, Franklin, Clarion-Kitanning, Butler, New Castle, Midland, Beaver and Shippingport-Zelienople. The Harrisburg terminal handles traffic sent from Baltimore for deliveries and pickups in the following areas: Lock Haven-Williamsport, Harrisburg-Reading, Allentown-Bethlehem-Easton, and Lancaster-York. Freight picked up in these areas is returned to the Harrisburg terminal and sent to Baltimore on a road run, with a further occasional road run to Pittsburgh.

PJAX agreed in the Settlement Stipulation that it lacked authority from the PUC to transport from points in Allegheny County to points on and east of U.S. Highway 15, or vice versa, solely over Pennsylvania highways. R. 692a. U.S. Highway 15 runs generally north to south across the state, following the west bank of the Susquehanna River for much of its length.

PJAX's practice of sending many shipments over interstate routes undeniably resulted in some very circuitous trips. Examples noted by the PUC in its brief include: Pittsburgh to Beaver Falls via Niles, in excess of 100 miles (30 miles direct); Pittsburgh to Butler via Niles, 130 miles (45 miles direct); Pittsburgh to Mt. Pleasant and Connellsville via Morgantown, in excess of 100 miles (30 and 35 miles direct, respectively); Pittsburgh to Monessen ...

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