Summary
holding that nonuse of a certificate of public convenience does not constitute an abandonment, particularly when compelled by events and circumstances beyond the carrier's control rather than by the carrier's initiative
Summary of this case from Susquehanna v. Public Utility Com'nOpinion
Argued June 1, 1981
July 6, 1981.
Public utilities — Transfer of common carrier certificate — Abandonment — Scope of appellate review — Violation of constitutional rights — Error of law — Findings of fact — Substantial evidence — Application to discontinue service — Curtailment of service — Intention.
1. Review by the Commonwealth Court of Pennsylvania of a decision of the Pennsylvania Public Utility Commission granting an application to transfer a common carrier certificate is to determine whether constitutional rights were violated, an error of law was committed or necessary findings of fact were unsupported by substantial evidence. [346]
2. The holder of a common carrier certificate is properly found not to have abandoned his right to provide service precluding his transfer of the certificate when substantial evidence supports a finding that he did not intend an abandonment by a curtailment of service dictated by circumstances beyond his control, but that he continued to maintain insurance, tariffs, file reports and pay assessments and that the filing of an application to discontinue service was not intended as an abandonment but was intended to attract an offer of purchase. [346-7]
Argued June 1, 1981, before President Judge CRUMLISH and Judges ROGERS and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 2309 C.D. 1979, from the Order of the Pennsylvania Public Utility Commission in case of James L. Sunstein, t/a Airport Limousine Service, No. A.80302, F.3.
Application with the Pennsylvania Public Utility Commission to transfer common carrier certificate. Application approved. Protestant filed exceptions. Decision affirmed. Protestant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Richard S. Dorfzaun, with him Robert J. Marino, Dickie, McCamey Chilcote, for petitioner.
Marlane Chestnut, with her Mark S. Jennings, Assistant Counsel, Alfred N. Lowenstein, Deputy Chief Counsel, and George M. Kashi, Chief Counsel, for respondent.
John A. Pillar, Pillar Mulroy, with him Jerome Solomon, for intervenor, James L. Sunstein, t/a Airport Limousine Service.
This is an appeal from an order of the Public Utility Commission approving a transfer from Coraopolis Taxi Service, Inc. (transferor) to James L. Sunstein (transferee, trading and doing business as Airport Limousine Service) of the right:
To transport, as a common carrier, persons upon call or demand in the borough of Coraopolis, and the townships of Moon, Crescent, Robinson and Findley, Allegheny County.
Yellow Cab Company of Pittsburgh (appellant) opposed the transfer application contending that the transferor, having abandoned the right to render service as evidenced by its certificate of public convenience, had nothing to transfer. An Administrative Law Judge and the Commission found that there had been no abandonment and approved the transfer. This appeal followed. We affirm.
The evidence on the issue of abandonment is as follows:
Clyde Bailey, Esquire, a member of the Allegheny Bar and president of the transferor, purchased the certificate from Mr. and Mrs. Walter Houston in 1970. Mr. Houston was retained to manage the daily operations of the taxi service. Five years later Houston became ill, was hospitalized on several occasions and, although assisted by his wife, was physically unable to provide the level of reliable service desired by the public. Revenues declined, employees resigned, and some equipment was sold or inadequately maintained.
Bailey was unable to find a managerial replacement for Houston and, in 1978, decided to sell the certificate and other remaining assets of the corporation. Offers of sale to existing carriers were rejected and, in August, 1978, Bailey filed an application with the Commission to discontinue service as required by Section 1102(3) of the Public Utility Code, 66 Pa. C. S. § 1102(a)(3). He testified with regard to the discontinuance application that he had no intention to abandon his rights under the certificate but merely hoped that an offer to purchase the corporate assets would result from the official notice of his desire to discontinue service.
This hope was realized. Shortly after the notice appeared in the Pennsylvania Bulletin Bailey was sought out by the transferee, a sale of assets including the certificate was negotiated and the application for discontinuance was withdrawn. In September, 1978, the application for transfer here at issue was filed with the Commission.
Our review in these cases is limited to determining whether constitutional rights have been violated, an error of law committed, or whether the findings, determinations and order of the Commission are supported by substantial evidence. Blue Mountain Consolidated Water Company v. Pennsylvania Public Utility Commission, 57 Pa. Commw. 363, 426 A.2d 724 (1981).
The appellant argues that it was error on the part of the Commission to find in the face of the evidence of declining service and revenues and the filing of an application to discontinue service that the transferor had not abandoned his right to render public service. "To constitute an abandonment there must be an intention to abandon together with external acts by which the intention is carried into effect." Byerly v. Pennsylvania Public Utility Commission, 440 Pa. 521, 525-26, 270 A.2d 186, 189 (1970). See Morgan Drive Away, Inc. v. Pennsylvania Public Utility Commission, 6 Pa. Commw. 229, 293 A.2d 895 (1972). The evidence of Bailey's intentions was at best conflicting and, therefore, a matter for the Commission to resolve. See Dublin Water Co. v. Pennsylvania Public Utility Commission, 206 Pa. Super. 180, 213 A.2d 139 (1965).
The filing of an application to discontinue service, later withdrawn, is relevant to the issue of Bailey's intent in this regard; it is not conclusive on the issue.
While it is conceded that the transferor markedly curtailed its service, such curtailment or even nonuse, especially when compelled by events and circumstances beyond the carrier's control, does not constitute abandonment. See W. D. Rubright Co. v. Pennsylvania Public Utility Commission, 197 Pa. Super. 242, 177 A.2d 119 (1962) (authorities collected); Feather v. Pennsylvania Public Utility Commission, 41 Pa. Commw. 544, 399 A.2d 829 (1979). Cf. Lawson v. Simonsen, 490 Pa. 509, 417 A.2d 155 (1980). The transferor's continued maintenance of tariffs and insurance, filing of annual reports and payment of annual assessments contradict the assertion of abandonment and provide substantial support for the Commission's determination. Cf. Byerly v. Pennsylvania Public Utility Commission, supra, 440 Pa. at 526, 270 A.2d at 188.
Order affirmed.
ORDER
AND NOW, this 6th day of July, 1981, the order of the Pennsylvania Public Utility Commission is affirmed.