PETITION FOR REVIEW (PENNSYLVANIA PUBLIC UTILITY COMMISSION).
Robert E. Welsh, Jr., John S. Estey, and Jeffrey J. Norton, Montgomery, McCracken, Walker and Rhoads, Philadelphia, for petitioner.
Daniel P. Delany, Chief Counsel, Karen Oill Moury, Asst. Counsel, Michael C. Schnierle, and H. Kirk House, Deputies Chief Counsel, Harrisburg, for P.U.C.
Mary F. Walrath and Susan L. Parsons, Clark, Ladner, Fortenbaugh & Young, Philadelphia, for amicus curiae, Official Unsecured Creditors' Committee of Metro Transp.
Crumlish, Jr., President Judge, and Doyle, Barry, Colins, Palladino, McGinley and Smith, JJ. Colins, J., dissents.
[ 128 Pa. Commw. Page 226]
Petitioner, Metro Transportation Company (Metro) appeals from an opinion and order of the Pennsylvania Public Utility Commission (PUC) denying Metro's request for self-insurance authorization.
In October, 1985, Metro applied to the PUC for self-insurance status.*fn1 On July 29, 1986, Metro filed a Petition for Reorganization under Chapter 11 of the Bankruptcy Code.*fn2 In August, 1986, a hearing was held on Metro's application for self-insurance status, before an administrative law judge (ALJ) of the PUC. At this hearing Metro and the PUC's Law Bureau introduced into evidence a settlement agreement which provided that the proposed self-insurance plan should be approved if sufficient evidence of Metro's financial ability to fund the plan could be presented. After hearing testimony, the ALJ concluded that sufficient evidence was not presented. Therefore, the proposed plan would not provide adequate protection to Metro patrons or the general public. On September 26, 1986, the PUC adopted the decision of the ALJ, and denied Metro's motion for further hearings. The order of the PUC also directed Metro to cease operations as of October 1, 1986, if commercial liability insurance was unavailable.
On September 29, 1986, the Referee in Bankruptcy enjoined the PUC from taking any action to disrupt Metro's operations.*fn3 This order directed Metro to operate under a self-insurance plan that was monitored by the bankruptcy court from October 1, 1986 through June 1, 1988. Metro continued to seek a rehearing before the PUC on its request for self-insurance status and on November 3, 1986, the PUC granted further hearings. Hearings were then conducted
[ 128 Pa. Commw. Page 227]
on March 31, 1987 and April 29, 1987, at which time Metro submitted into evidence the written testimony of Marshall Sherman and Robert Seaner along with 13 separate exhibits.*fn4 Metro also provided the oral direct testimony of Kevin Walsh, and all three men testified on cross-examination.
On December 29, 1987, the ALJ again denied Metro's application, concluding that (1) Metro did not establish its financial ability to fund the proposed plan on a continuing basis, and (2) it failed to show that the escrow account created for paying claims as they arose, contained sufficient monies to settle claims over the life of the plan. Metro filed exceptions and requested oral argument before the PUC. On April 29, 1988, the PUC issued an order, adopting the ALJ's decision and denying Metro's exceptions and its request for oral argument. Metro filed a Petition for Review with this court and the PUC ...