Opinion
Argued June 9, 1976
July 6, 1976.
Public utilities — Certificate of public convenience — Burden of proof — Public need — Adequacy of existing service — Capacity to provide service — Findings of the Pennsylvania Public Utility Commission.
1. Under the Public Utility Law, Act 1937, May 28, P.L. 1053, an applicant for a certificate of public convenience must prove the public need for the proposed service, the inadequacy of existing service and the capacity of the applicant to meet the need satisfactorily. [414]
2. A finding by the Pennsylvania Public Utility Commission that existing certificate holders provide and can provide service in the future adequate to meet public needs dictates that an application for a certificate of public convenience by one seeking to serve the same needs be denied. [415-6]
Argued June 9, 1976, before President Judge BOWMAN and Judges CRUMLISH, JR., WILKINSON, JR., MENCER and BLATT. Judges KRAMER and ROGERS did not participate.
Appeal, No. 1649 C.D. 1975, from the Orders of the Pennsylvania Public Utility Commission in cases of Application of L. P. Transportation, Inc., a corporation of the State of New York, Docket No. 99089; and Application of H. R. Ritter Trucking Co., trading and doing business as H. R. Ritter Trucking Co., Inc., a corporation of the State of New Jersey, Docket No. 99091.
Applications to the Pennsylvania Public Utility Commission for certificates of public convenience. Applications approved. Protestants appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
William E. Zerber, with him Robert W. Small, R. Bruce Whitney, and, of counsel, Morgan, Lewis Bockius, for appellants.
R. Knickerbocker Smith, Jr., Assistant Counsel, with him Alfred N. Lowenstein, Assistant Counsel, and Edward J. Morris, Counsel, for appellee.
John M. Musselman, with him, of counsel, Rhoads, Sinon Reader, for intervening appellees.
This is an appeal from two orders of the Pennsylvania Public Utility Commission (PUC) granting certificates of public convenience to L. P. Transportation, Inc., (LPTI) and H. R. Ritter Trucking Co. (Ritter). We reverse.
On December 13, 1974 (at Application Docket No. 99091) and on January 9, 1975 (at Application Docket No. 99089), respectively, Ritter and LPTI filed with the PUC similar applications for certificates of public convenience seeking authority: "To transport, as a [common] carrier, liquified petroleum gas [LPG] from facilities located at the Eagle Terminal of Texas Eastern Transmission Corporation, Allegheny Pipeline System, in the Township of Upper Uwchlan, Chester County to points in Pennsylvania." The applications were protested by appellants, three trucking concerns already certificated by the PUC as common carriers to transport LPG in the application area, and, consequently, were consolidated for the purpose of hearing. In February and April, 1975, hearings were held, following which, by short-form orders entered October 10 and 14, 1975, the PUC approved the respective applications of LPTI and Ritter and granted them certificates of public convenience. Appellants filed an appeal with this Court in which LPTI and Ritter were permitted to intervene as party appellees. The PUC, thereafter, on December 29, 1975, entered two long-form orders affirming its earlier grants of the certificates.
Section 203(a) of the Public Utility Law, Act of May 28, 1937, P.L. 1053, as amended, 66 P. S. § 1123(a), provides that "[a] certificate of public convenience shall be granted by order of the commission, only if and when the commission shall find or determine that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public. . . ." An applicant for a certificate of public convenience carries the burden of proving (1) a public need for the proposed service, (2) the inadequacy of the existing service to satisfy the need, and (3) the capacity of the applicant to satisfactorily meet the need. Pennsylvania Public Utility Commission v. Pennsylvania Radio Telephone Corp., 20 Pa. Commw. 591, 342 A.2d 489 (1975); Dutchland Tours, Inc. v. Pennsylvania Public Utility Commission, 19 Pa. Commw. 1, 337 A.2d 922 (1975); John Gibbons, Inc. v. Pennsylvania Public Utility Commission, 18 Pa. Commw. 114, 334 A.2d 806 (1975); Seiferd v. Pennsylvania Public Utility Commission, 12 Pa. Commw. 85, 315 A.2d 320 (1974).
Appellants essentially argue that LPTI and Ritter failed to meet their burden as to all three of the foregoing requirements, and, additionally, contend that the proposed service is interstate, rather than intrastate, in nature, thus depriving the PUC of jurisdiction to grant motor carrier authority. However, we need not decide all the issues raised by appellants, but can dispose of this case on the narrow question of whether LPTI and Ritter successfully proved that the existing service provided by appellants is inadequate.
We have carefully examined the voluminous record and the numerous findings of fact made by the PUC in its two long-form orders. It appears that certain shippers of LPG, who appeared before the PUC in support of the LPTI and Ritter applications, will require additional delivery service in the application area in order to meet foreseeable needs resulting from an expected upward shift in the volume of LPG transmitted to the Eagle Terminal. The record and findings, however, provide little, if any, basis on which to conclude that the service offered by appellants is inadequate to meet the additional service requirements. Indeed, the PUC specifically found that appellants "presently meet liquified petroleum gas transportation needs in the application area"; that the service provided by appellants "has been adequate in most instances" and generally satisfactory; and that appellants indicated that they either had or could acquire adequate equipment to meet the anticipated increase in traffic at Eagle. Consequently, we are compelled to hold that LPTI and Ritter failed to carry their burden of proving the existing service to be inadequate, and that they, therefore, are not entitled to certificates of public convenience.
Finding of Fact 35 (Long-form Order at Application Docket No. 99089); Finding of Fact 32 (Long-form Order at Application Docket No. 99091).
Id.
Finding of Fact 41 (Long-form Order at Application Docket No. 99089); Finding of Fact 38 (Long-form Order at Application Docket No. 99091).
Findings of Fact 29, 31, 32 and 34 (Long-form Order at Application Docket No. 99089); Findings of Fact 26, 28, 29 and 31 (Long-form Order at Application Docket No. 99091). There was no contradictory evidence, much less a finding, that appellants could not meet future needs. This distinguishes Highway Express Lines, Inc. v. Pennsylvania Public Utility Commission, 195 Pa. Super. 92, 169 A.2d 798 (1961), which was relied upon by the PUC.
Accordingly, we will enter the following
ORDER
AND NOW, July 6, 1976, the orders of the Pennsylvania Public Utility Commission, entered December 29, 1975, at Application Docket Nos. 99089 and 99091, granting L. P. Transportation, Inc., and H. R. Ritter Trucking Co., respectively, certificates of public convenience, are hereby reversed; and the said certificates are hereby vacated.