PUBLIC SERVICE COMMISSION CHARLESTON ADMINISTRATIVE LAW JUDGE'S DECISION PROCEDURE

Transcription

1 P OF WEST VIRGINIA CHARLESTON Entered: M.C. CASE NO C RAYMOND LEE PRIBBLE, doing business as PRIBBLE'S, New Martinsville, Wetzel County. Application for a certificate to operate as a common carrier. ADMINISTRATIVE LAW JUDGE'S DECISION PROCEDURE On July 12, 1988, Raymond Lee Pribble, doing business as Pribble's, New Martinsville, Wetzel County, filed an application for a certificate of convenience and necessity to operate as a common carrier by motor vehicle in the transportation of wrecked and/or disabled motor vehicles within and between points and places in Wetzel County on the one hand and places in West Virginia on the other hand. All hauls will begin or end in Wetzel County, and operations will be conducted from a place of business located in Proctor, West Virginia. By order entered herein on July 12, 1988, the Applicant was required to give notice of the filing of said application by publishing a copy of the order once in a newspaper, duly qualified by the Secretary of State, published and of general circulation in Wetzel County. The order granted leave to anyone interested to file written protest to said application within ten (10) days after the date of publication of notice. The order further provided that if no protest was filed said application may be approved without hearing thereon. The file does not contain an affidavit of publication to indicate that notice was published as required. However, written protest was filed to the granting of said application by Anderson Enterprises, Inc., of Ne% Martinsville on July 29, 1988; by William L. Adam, doing business as Bill's Body Shop, of Middlebourne, West Virginia on August 1, 1988, and by Michael Richmond, doing business as Richmond Towing, of Pinegrove, West Virginia on August 3, Upon the receipt of written protest the Commission by order entered on September 1, 1988, set this matter for hearing to be held in the Lewis-Wetzel Family Center, New Martinsville, West Virginia, on Wednesday, October 12, 1988, at 1:30 p.m. The order required the Commission's Executive Secretary to give notice of said hearing to all parties of record by mailing to each of them a copy of said order by United States Certified

2 Mail, return receipt requested. The Postal Return Receipts contained in the file indicate that proper notice was given. The hearing was held as scheduled on October 12, 1988, at 1:30 p.m., EDST. The Applicant appeared in person and by Rodney T. Berry, Esq., Counsel. Bill Lemon, Esq., Counsel, appeared on behalf of Anderson Enterprises, Inc., Protestant. There were no other appearances. At the conclusion of the hearing this matter was submitted for a decision. DISCUSSION OF THE EVIDENCE INCLUDING FINDINGS OF FACT The Applicant, Raymond Lee Pribble, Route 1, Box 85, New Martinsville, West Virginia, is currently employed as a school bus driver for the Wetzel County Board of Education. (Tr., pp. 5-6). Mr. Pribble owns certain real properties in Wetzel County, having an estimated value of approximately $160,000 and he owns a 1966 International, 1600 Series, wrecker truck that has approximately 34,000 miles. (Tr., pp. 6-9, 12). Mr. Pribble is of the opinion that there is a need for a big wrecker truck to be based in Wetzel County. He testified that the nearest heavy duty wreckers were located in Wheeling and Parkersburg. He testified that as a school bus driver he has had to wait four to five hours for a wrecker to come from Wheeling or Parkersburg. (Tr., pp. 9-10). Mr. Pribble also testified that there was a lot of heavy truck traffic through Wetzel County. (Tr., pp ). Mr. Pribble proposes to initially commence operation from his home, which is located approximately 10 miles from New Martinsville. If business warrants he will rent facilities in Proctor, hire two or three part-time employees and will buy one or two more wrecker trucks. (Tr., pp ). On cross-examination, Mr. Pribble admitted that the wrecker he currently owns is not capable of handling large dump trucks or tractor trailers, other than possibly to tow them out of a ditch. (Tr., pp ). The application was supported by four public witnesses. pp ). (Tr., The first witness, Thomas Durrick, a substitute school bus driver, operates an auto body repair shop in New Martinsville. He occasionally needs a wrecker to tow disabled vehicles to the shop for repair. (Tr., pp ). Mr. Durrick testified that he currently uses Fleet of Wheeling and the Protestant Anderson to tow vehicles to his shop. He testified that he has never had any problem in getting large vehicles towed to his shop and that he had never been denied service. (Tr., pp , 37). On cross-examination, Mr. Durrick stated that he has only needed wrecker service twice during the past two years. (Tr., p. 35). The second witness to testify on behalf of the Applicant was Edward E. Glover, Director of Transportation for the Wetzel County School System. Mr. Glover has held this position since March of Mr. Glover testified that while Director of Transportation he has had no occasion to call a wrecker to tow a school bus. Mr. Glover stated that he would use the -2-

3 Applicant's service if needed, and if the Applicant has adequate equipment. (Tr., pp ). Mr. Glover stated on cross-examination that he did not know whether it would be a conflict of interest in using the Applicant's service to tow school buses, since Mr. Pribble is an employee of the Wetzel County School System. (Tr., pp ). The third witness for the Applicant was Ted Shoupe, Director of Transportation for the Tyler County School System, a position which he has held for approximately eight and one-half years. (Tr., p. 46). Mr. Shoupe testified that he has had no trouble in getting wrecker service during the years that he has been Director of Transportation. He stated that he normally relies on Emory Brothers located in Parkersburg. However, he has also used the services of Bill Adams in Middlebourne, and Watco in Paden City. (Tr., pp ). On cross-examination, Mr. Shoupe testified that he does not have any complaints about the existing wrecker service and that the response time in getting service has been adequate. (Tr., p. 53). The last witness for the Applicant was Elwood Dury, a truck driver for Raymond Blake who is engaged in the mobile home transportation business. (Tr., pp , 63). Mr. Dury testified to different occasions when a heavy duty wrecker was needed to assist in the movement of a mobile home. He stated that the nearest heavy duty wrecker operators were located in the Wheeling area. He testified that on one occasion he had to wait three days to get Middlecreek from Wheeling to assist in the movement of a mobile home that was located in a churchyard. (Tr., pp ). Mr. Dury testified that over the years he has used Middlecreek and Fleet of Wheeling, and Watco of New Martinsville to assist in mobile home movements. (Tr., pp ). Mr. Dury further testified that he would use the Applicant's service, if he was in the vicinity when needed. (Tr., p. 60). The Protestant, Anderson Enterprises, Inc., is the holder of P.S.C. M.C. Certificate No. F-6217, which authorizes the transportation of wrecked and/or disabled motor vehicles in Wetzel County and between points and places in Wetzel County on the one hand and points and places in West Virginia on the other hand. Mr. Anderson obtained the certificate by transfer from Watco Services, Inc., by Order entered on May 26, (M.C. Case No ). Mr. Anderson has been in operation approximately three months, as of the date of the hearing. He is currently operating a one-ton wrecker and a Ford Rollback. (Tr., pp ). Mr. Anderson testified that he has approximately twelve tows per week and that he averages approximately $25 per tow. He stated that his insurance on the two vehicles is approximately $2,700 per year. (Tr., p. 71). He stated that heavy wreckers are available in the Wheeling area and that Bill Adams offers large wrecker service from Middlebourne and Paden City. (Tr., pp ). Mr. Anderson is of the opinion that there is not a public need for additional wrecker service or large wrecker service in Wetzel County, since there are four carriers presently available within a twelve-mile radius. (Tr., pp ). -3-

4 FINDINGS OF FACT The Administrative Law Judge is of the opinion and finds that: 1. On July 12, 1988, Raymond Lee Pribble, doing business as Pribble's, filed an application for a certificate of convenience and necessity to operate as a common carrier by motor vehicle in the transportation of wrecked and/or disabled motor vehicles within and between points and places in Wetzel County on the one hand and places in West Virginia on the other hand, said operation to be conducted from a place of business located in Proctor, West Virginia. (See, Application). 2. The Applicant is currently employed as a school bus driver for the Wetzel County Board of Education. (Tr., pp. 5-6). 3. The Applicant owns a 1966 International, 1600 Series, wrecker truck and certain real properties having an estimated value of $160,000. (Tr., pp. 6-91, 4. Mr. Pribble proposes to offer the public a heavy duty wrecker service. However, he admitted on cross-examination that the vehicle he now owns is not capable of handling large dump trucks or tractor-trailer units. (Tr., pp. 9-10, 10-12, 12-15, 17-20). 5. Thomas Durrick, a substitute school bus driver and a witness for the Applicant, operates an auto body repair shop in New Martinsville. Mr. Durrick needs wrecker service approximately two times per year and relies upon the Protestant and the carriers located in Wheeling. Mr. Durrick testified that he has never been denied wrecker service and that he has not had any problems in getting service when needed. (Tr., pp ). 6. Edward E. Glover, Director of Transportation for the Wetzel County School System and a witness for the Applicant, has never had an occasion to call a wrecker to tow a school bus. He stated that he would use the Applicant's service if needed, if the Applicant has adequate equipment. (Tr., pp ). 7. Ted Shoupe, Director of Transportation for the Tyler County School System and a witness for the Applicant, testified that he has not had any problems in getting wrecker service during the eight years that he has been Director of Transportation. He has relied upon Emory Brothers of Parkersburg and has used the services of Bill Adams in Middlebourne and Watco in Paden City. (Tr., pp ). 8. Elwood Dury, truck driver for Raymond Blake and a witness for the Applicant, testified as to the need for a heavy duty wrecker truck to assist in the movement of mobile homes. (Tr., pp ). He testified that on the average he has had to wait as long as three hours to get a heavy duty wrecker from the Wheeling area. (Tr., p. 61). 9. Protestant, Anderson Enterprises, Inc., holds P.S.C. M.C. Certificate No. F-6217, and is currently operating a one-ton wrecker and a rollback unit to provide wrecker service in Wetzel County, from a base in -h-

5 ~. New Martinsville. Mr. Anderson testified that there was not sufficient business to warrant the acquisition of a heavy duty wrecker and he was of the opinion that there was no need for additional wrecker service in Wetzel County, since there are four carriers presently available within a 12-mile radius. (Tr., pp ). DISCUSSION OF APPLICABLE LAW An applicant for a certificate of convenience and necessity has the burden of proof to establish that public convenience and necessity require the proposed service. Weirton Ice & Coal Supply Company v. Public Service Commission, 240 S.E.2d 686, 689 (W.Va. 1977). The law provides that there must be a showing of both "convenience and necessity" not "convenience or necessity", the language being conjunctive not disjunctive. Charleston Transit Co. v. Public Service Commission, 142 W.Va. 750, 758, 98 S.E.2d 437 (1957). The Commission has interpreted these requirements to mean that the applicant must demonstrate that he or she has the financial ability, experience and fitness to provide a needed, useful and responsive public service, as well as that the public convenience and necessity require the proposed service. Ford Brothers, Inc., M.C. Case No , April 9, The applicant must produce public witnesses who are able to testify that the proposed service is needed in the area of application. Harless Excavating Company, Inc., M.C. Case No , April 23, If the evidence of record in the case reveals that there is some kind of need in the proposed area of application, the applicant has established a prima facie case that public convenience and necessity require the proposed service and that the service furnished by existing transportation + facilities is not reasonably efficient and adequate. Ford Brothers, su ra. The applicant is not required to demonstrate by p o s i t v t t e service furnished by existing; facilities is not reasonablv adeauate and efficient. Additionally, along Gith the testimony of public ditnes8es (See Talle Service, Inc., M.C. Case No , November 20, 19801, factors 7F?F SUC as t e desirability of additional competition and the enhancement of a comdanv' s ability to-provide a prompt and efficient public service may war;anc a finding that the additional service is required by the public convenience and necessity. Mac's Wrecker Service, In&., M.C. - Case No. 3358, December 13, Once the applicant has presented satisfactory evidence that public convenience and necessity require the proposed service, the burden of proof then shifts to those persons who are protesting the application. The Protestants must demonstrate by a preponderance of the evidence that the service furnished by existing transportation facilities is reasonably efficient and adequate and that such entry into the field by the applicant would adversely affect or be detrimental to the public (because, for example, additional competition would be ruinous to the existing common carrier) and that all reasonable needs in the area of application are being met. Harless, supra, at page 3. The Protestants must established that the granting of the requested authority would affect the operations of existing common carriers to an extent contrary to the public interest and this evidence must be demonstrated by other than self-serving statements of the -5-

6 Protestants as to the adequacy and efficiency of their concerns in meeting demands. (Id.). Thus, in order to meet their burden of proof in an applicationfbr a certificate of convenience and necessity, the Protestants must present witnesses other than themselves before the Commission will deny an application based on their presentation. Ford Brothers, supra. COMMENTS The Applicant has not presented sufficient evidence to establish a prima facie case that public convenience and necessity require the proposed service. The testimony of the four public witnesses supporting the application, when considered separately or as a whole, does not show that there is some need for the Applicant s proposed service in Wetzel County. Thomas Durrick has never had any problems in getting wrecker service to tow disabled motor vehicles to his repair shop. He only needs a wrecker approximately two times per year. Edward E. Glover, Director of Transportation for the Wetzel County School System, has not had an occasion to call for a wrecker to tow a school bus. Since the Applicant is an employee of the Wetzel County School System, there is a question as to whether he could legally provide wrecker service to the Wetzel County School Board, even if certificated. Ted Shoupe, Director of Transportation of the Tyler County School System, is completely satisfied with the wrecker service he is currently receiving from the existing common carriers. Even if the pending application were to be approved, the Applicant could not provide service to the Tyler County School System between points and places in Tyler County. The testimony of Elwood Dury, a truck driver engaged in the movement of mobile homes, does not effectively support the application. The pending application is for authority to tow wrecked and/or disabled motor vehicles and is not for authority to assist in the transportation of mobile homes. There are occasions with a mobile home operator may need the assistance of a wrecker to place the mobile home into position for transportation. The wrecker service thus needed is not for the purpose of transporting a mobile home upon and over the public highways of the State of West Virginia. Usually such wrecker service is performed on private property and not on the public highways. The testimony of Elwood Dury in no way indicates that there is a need for additional wrecker service in Wetzel County for the transportation of wrecked and/or disabled motor vehicles. Since the Applicant failed to make a rima facie case, the burden of proof did not shift to the Protestant to 5r- s ow by a preponderance of the evidence that the existing common carrier service was reasonably efficient and adequate and that such entry into the field by the Applicant would adversely affect or be detrimental to the public interest. The Protestant, however, did show that he has the equipment, that he is available to serve the public on a 24-hour basis, and that there are four wrecker services available in Wetzel County. -6-

7 CONCLUSION OF LAW The Administrative Law Judge is of the opinion, finds and concludes that the Applicant, Raymond Lee Pribble, doing business as Pribble's, has failed to present sufficient evidence to show that public convenience and necessity require the proposed service and the application filed on July 12, 1988, as above-described, for authority to operate a wrecker service in Wetzel County, should be denied. ORDER IT IS, THEREFORE, ORDERED that the application filed by Raymond Lee Pribble, doing business as Pribble's, on July 12, 1988, for a certificate of convenience and necessity to operate as a common carrier by motor vehicle in the transportation of wrecked and/or disabled motor vehicles within and between points and places in Wetzel County on the one hand and places in West Virginia on the other hand, be, and it hereby is, denied. The Executive Secretary is hereby ordered to serve a copy of this order upon the Commission by hand delivery, and upon all parties of record by United States Certified Mail, return receipt requested. Leave is hereby granted to the parties to file written exceptions supported by a brief with the Executive Secretary of the Commission within fifteen (15) days of the date this order is mailed. If exceptions are filed, the parties filing exceptions shall certify to the Executive Secretary that all parties of record have been served said exceptions. If no exceptions are so filed this order shall become the order of the Commission, without further action or order, five (5) days following the expiration of the aforesaid fifteen (15) day time period, unless it is ordered stayed or postponed by the Commission. Any party may request waiver of the right to file exceptions to an Administrative Law Judge's Order by filing an appropriate petition in writing with the Secretary. No such waiver will be effective until approved by order of the Commission, nor shall any such waiver operate tc make any Administrative Law Judge's Order or Decision the order of the Commission sooner than five (5) days after approval of such waiver by the Commis s ion. McD : df s Maynard D. McDonnell Administrative Law Judge -7-