Opinion
No. 73-757
Decided February 27, 1974.
Public Utilities Commission — Motor transportation companies — Application to amend contract motor carrier permit — Order of commission affirmed by Supreme Court, when.
APPEAL from the Public Utilities Commission.
Kungle Trucking Company, Inc., transports masonry building units, sand and limestone for Akron Brick Block Company under authority of a contract motor carrier permit. An application for permission to amend its permit by deleting some and adding other shipping points for sand and limestone was filed with the Public Utilities Commission by Kungle Trucking.
The application was referred to an attorney examiner, and a public hearing was held, at which appellant, Raymond J. Bertolini, appeared and entered a protest. Appellant holds a certificate of public convenience and necessity authorizing the transportation of so-called dump truck commodities.
The attorney examiner recommended that the application of Kungle Trucking be denied on the ground that applicant failed to show a deficiency in the service of the subsisting and protesting common carrier, Bertolini.
A copy of the examiner's report was sent to applicant's counsel. However, no copy was sent to counsel for appellant.
The commission, disagreeing with the attorney examiner's recommendation, found that Kungle Trucking merely sought to "follow its traffic" to new natural sources of bulk sand and limestone, and that no change in competitive balance or amount of traffic between applicant and protestant was contemplated. It ordered that the application be granted.
An appeal as of right by protestant brings the cause to this court for review and final determination.
Messrs. Quine, Davis Murray and Mr. James E. Davis, for appellant.
Mr. William J. Brown, attorney general, Mr. Keith F. Henley and Mrs. Cheryl H. Keith, for appellee Public Utilities Commission.
Mr. Ivan L. Smith, for appellee Kungle Trucking Co., Inc.
In urging reversal of the commission's order, appellant contends that the commission's order is unlawful and unreasonable, first, because failure of the commission to serve him with a copy of the attorney examiner's report was a violation of the commission's rules (Rule 1.18) and constituted an abuse of discretion, and, secondly, because Kungle Trucking failed to show a deficiency in the service of the existing common carrier serving the shipper.
The commission admits that the examiner's report was not served on appellant, as required by commission Rule 1.18. However, the commission argues, no substantial rights of appellant were affected by its failure to serve appellant with a copy of a report entirely favorable to him, and which, in any case, is merely advisory to the commission in its considerations.
Appellant conceded in oral argument that he was not prejudiced or harmed in any way by the failure of the commission to serve him with a copy of the examiner's report.
The commission contends further that, in its order, it specifically concluded that the situation presented was not ordinary and that in such circumstances the principle that there must be a showing of deficiency in the service of a protesting carrier should not be controlling.
Upon consideration of the entire record and under the particular facts of this case, the order of the commission granting the application is neither unreasonable nor unlawful and is affirmed. R.C. 4903.13; H. K. Motor Transportation v. Pub. Util. Comm. (1939), 135 Ohio St. 145; Bruder v. Pub. Util. Comm. (1968), 14 Ohio St.2d 24.
Order affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.