K & M TRUCKING CO., Midkiff,

Transcription

1 OF WEST VIRGINIA CHARLESTON Entered: October 11, 1985 M.C. CASE NO C KYLE SCRAGG, doing business as K & M TRUCKING CO., Midkiff, Lincoln County. Application for a certificate to operate as a common carrier. HEARING EXAMINER'S DECISION PROCEDURE On September 6, 1984, Kyle Scragg, doing business as K & M Trucking Co., Midkiff, Lincoln County, filed an application for a certificate of convenience and necessity to operate as a common carrier by motor vehicle in the transportation of-- "coal and low grade commodities within and between points and places in Lincoln, Cabell, Wayne and Logan Counties on the one hand and points and places in West Virginia on the other hand. All shipments will begin or end in said counties." The Commission received proper affidavits of publication from each of the four named counties. The Applicant caused the Commission's December 6, 1984 order to be published in the Wayne County News, Wayne County; The Logan Banner, Logan County; The Cabell Record, Cabell County; and The Lincoln Journal, Lincoln County. On December 3, 1984, the Commission issued a Notice of Hearing ordering that this matter be set for hearing before Hearing Examiner Robert W. Glass to be held in the Commission's Hearing Room, 201 Brooks Street, Charleston, West Virginia, on Friday, January 25, 1985, at 10:30 a.m., at which time and place the Applicant shall appear and prosecute - -

2 said application. Leave was also granted to anyone interested to file objections to this application at any time on or before said date or at said hearing. On January 25, 1985, the Examiner opened the record in this proceed- ing and indicated that he had received a request for a continuance from the Applicant who was in the hospital undergoing surgery and would be unable to attend the hearing. The Examiner granted the continuance and noted the appearance of the Protestant, Nichols & Counsel, J. A. Bibby, Jr. Ronk, Inc., by its The Commission issued a Notice of Further Hearing on March 14, 1985, setting the matter for hearing on April 26, 1985, at 9:30 a.m., at the location previously designated. Whereupon on April 26, 1985, Hearing Examiner Mark Aliff took the testimony of two Applicant witnesses and two Protestant witnesses concern- ing the matters herein. Mr. Kyle Scragg appeared pro _. se and Mr. J. A. Bibby, Jr., Esquire, represented the Protestant. EVIDENCE Mr. Kyle Scragg testified in support of the application for a certificate of convenience and necessity. He testified that his company, K Sr M Trucking Co., owns two dump trucks and one pickup truck. It owns a 1974 Chevrolet tri-axle and a 1975 tandem Ford, one of which hauls 21 tons the other of which hauls 18 tons. Further, he owns two Chevrolet pickup trucks, one he described as a wheel drive vehicle. (Tr., pp. 6-8). Mr. Scragg also testified that he has a gravel yard, a coal yard, a restaurant and four rental houses on the same property which he maintains his trucking office in Midkiff. (Tr., p. 7). He estimated his net worth A

3 at approximately $100,000 and states that he meets the Commission's requirements for insurance. (Tr., p. 10). Mr. Scragg admitted that he is presently hauling coal, and that some of these hauls may be illegal. (Tr., pp. 6, 11, 12, 13). Mr. Scragg testified that he requested authority to operate in the four named counties for the reason that they were most proximate to his home and they were the counties in which he was most likely to work. (Tr., p. 11). Mr. Scragg submitted two letters signed by employees of asphalt companies stating that there is work for his trucks. These letters were not subject to cross-examination by the Protestant, since Mr. Scragg did not produce the author of those letters. The Applicant presented as its next witness Mr. Herman Fulks, the General Superintendent for State Construction located in Ripley, Jackson County, and Phoenix Construction located in Huntington, Cabell County. Mr. Fulks' employer is engaged in an asphalt business which requires hauling of blacktop, stone, rock and other low-grade materials. He testified that his need for trucks to transport this low-grade materials was seasonal although at the peak of the season he could have hired forty (40) trucks a day. He testified that during the 1984 peak, in September 1984, he could secure only thirteen (13) to eighteen (18) trucks. September is one of the busiest months in the asphalt industry. Mr. Fulks testified that Mr. Scragg also hauled for Columbia Gas Corporation and West Virginia Telephone Company. (Tr., pp ). The Protestant presented Mr. Steve Nichols. Mr. Nichols is an owner and officer of Nichols & Ronk, Inc., the Protestant. (Tr., p. 4). Nichols & Ronk owns eight trucks and lease one truck. Mr. Nichols testified that in the past he had leased one of Mr. Scragg's trucks. (Tr., pp. OF -3-

4 27-28). Nichols & Ronk has Public Service Commission authority to transport low-grade commodities in Lincoln, Cabell, Wayne, and Logan Counties. He did not appear to protest the application to transport coal but does protest the application in as much as the Applicant seeks authority to transport other low-grade commodities, such as those required by the asphalt industry. (Tr., pp ). The Protestant also presented Glenville Hye on its behalf. Mr. Hye was employed as a road superintendent by Blackrock Contracting for 31 years. He worked for Riverside Asphalt for three years until December 7, Riverside is located in Huntington, Cabell County. In both positions he was required to secure trucks for his employer. Mr. Hye testified that the asphalt business experiences seasonal fluctuations in its need for trucks to haul low-grade commodities. (Tr., p. 34). He stated that until September 1984, he had no difficulty in securing an adequate number of trucks. In that month, Mr. Hye used a truck from K & M Trucking Co., and again used it in December (Tr., p. 36). DISCUSSION The Commission's policy is well established that an Applicant for a common carrier certificate over a defined area must establish to the satisfaction of the Commission that the public convenience and necessity require the proposed service. Weirton Ice and Coal Supply Company v. Public Service Commission, 240 S.E.2d 686 (1977). The Applicant must demonstrate that the public convenience and necessity require the proposed service. Ford Brothers, Inc., M.C. Case No , April 9, 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 OF...---IP,":"'^ -r 11

5 facie case that the service furnished by existing transportation facilities is not reasonably efficient and adequate. (5) The Applicant must produce public witnesses who are able to testify that the proposed service is needed in the area of the application. Harless Excavating Company, Inc., M.C. Case No , April 23, Mr. Scragg, a principal shareholder, clearly has a personal interest in this application for a certificate and thereby his testimony should be considered generally self-serving in nature. Mr. Herman Fulks, General Superintendent of State Consrruction and Phoenix Construction, also tes- tified on behalf of the Applicant. The scope of his testimony was limited to his experience in securing trucks to transport low-grade asphalt- related commodities for his employer. Although his industry is seasonal, he testified that he needs as many as 40 trucks in one day and that in September, 1984, he had difficulty securing enough trucks to meet his needs. Additional independent evidence was secured from Protestant's witness, Glenville Hye. Mr. Hye confirmed that there was an additional need for haulers of low-grade commodities in September 1984 and December Although the Applicant presented some independent evidence of need for an additional common carrier of low-grade commodities due to the seasonal nature of the asphalt industry, he presented no independent evidence of a need for additional coal transporters. The Applicant must also amply demonstrate that it has the financial ability, expertise and fitness to provide a needed, useful and responsive public service. Ford Brothers, Inc., M.C. Case No , April 9, Mr. Scragg neither itemized his assets nor his obligations in oral testi- mony or in supporting documentation although he testified that he had an approximate net worth of $100,000. This value is consistent with K ti M -5-

6 Trucking Co.'s application for a certificate (M.C. Form No. 4). Mr. Scragg appears to be fit and experienced in the transportation of low-grade commodities. Indeed, both Mr. Hye and Mr. Fulks have used Mr. Scragg and his trucks in the past. Along with the testimony of public witnesses, factors such as the desirability of additional competition and the enhancement of a company's ability to provide a prompt and efficient public service may warrant a finding that the additional service is required by the public convenience and necessity. Mac's Wrecker Service, Inc., M.C. Case No. 3358, December 13, The primary issue is whether the Applicant showed "some kind of need" as required by Ford Brothers. The Commission applied this "some kind of need" standard in L. J. Navy Trucking Co., M.C. Case No R, February 7, In Navy Trucking, the Commission found that the Applicant must demonstrate by independent testimony that there existed "some unfulfilled, reasonable transportation requirement in the areal'. ( 5). In Navy Trucking, the Applicant produced self-serving testimony of need and two independent witnesses-customers who testified to the effect that it would be nice to have another carrier in the area. The Commission found such evidence inadequate for the Applicant to meet its prima facie burden of proof in that the evidence produced did not demonstrate an unfulfilled transportation requirement. In the instant proceeding, the independent testimony of both Mr. Fulks and Mr. Hye demonstrated that their Cabell County companies experienced an unfulfilled transportation need to transport low-grade commodities during the asphalt seasonal peak. Both witnesses testified that they sought a greater number of haulers during the seasonal peak then they - -h-

7 were able to locate and hire. Therefore, the Applicant met its prima facie burden of proving need for additional low-grade commodity haulers in Cabell County. Once the Applicant has presented satisfactory evidence that public convenience and necessity require the proposed service, the burden of proof then shifts to the Protestant. The Protestant 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 interest and that all reasonable needs in the area of the application are being met. Harless Excavating Company, Inc., M.C. Case No , April 23, In order to meet its burden of proof on the application for a certificate of convenience and necessity, the Protestant must present evidence other than self-serving statements before the Commission will deny an application based on its presentation. Larry's Mobile Homes, Inc., M.C. Case No C, issued May 21, Mr. Nichols' testimony that only two of his nine trucks were working on the day of hearing must be considered self-serving testimony by the Examiner. Moreover, the Protestant's public witness confirmed that there was a seasonal need for additional haulers of low-grade commodities for the asphalt industry. Therefore, the Protestant has not established that the granting of the requested authority would affect the operations of existing common carriers to an extent contrary to the public interest by independent evidence OF

8 ~~~ ~~ FINDINGS OF FACT 1. On September 6, 1984, Kyle Scragg, doing business as K & M Trucking Co., Midkiff, Lincoln County, filed an application for a certificate of convenience and necessity to operate as a common carrier by motor vehicle in the transportation of coal and low-grade commodities within and between points and places in Lincoln, Cabell, Wayne and Logan Counties on the one hand and points and places in West Virginia on the other hand. All shipments will begin or end in said Counties. 2. After publication, a hearing was held at which the Applicant presented two witnesses on its behalf and the ProtestantlIntervenor Nichols and Ronk, Inc., presented two witnesses. 3. Kyle Scragg testified that K & M Trucking Co., has a positive net worth of approximately One Hundred Thousand Dollars ($100,000.00). 4. Mr. Scragg further testified that since he received his chauffeur s license in 1958 he has not received any moving violations. Moreover, both Mr. Fulks and Mr. Hye testified that they have used Mr. Scragg and his trucks in the past. 5. The independent testimony of Mr. Herman Fulks, the General Superintendent for State Construction located in Ripley, Jackson County, and Phoenix Construction located in Huntington, Cabell County, demonstrated that he could not fulfill the need for low-grade haulers during the peak of the asphalt season in Although he could have used forty (40) trucks a day, he could only secure thirteen (13) to eighteen (18) trucks. 6. Mr. Nichols of Nichols & Ronk, Inc. presented self-serving testimony that his full fleet was not working on the day of hearing. -8-

9 7. Mr. Glenville Hye, a Road Superintendent for Riverside Asphalt, located in Huntington, Cabell County, testified that in September 1984 he had difficulty in securing an adequate number of trucks to haul low-grade commodities. 8. The record is void of any independent evidence as to the need for additional haulers of coal in Lincoln, Cabell, Wayne and Logan Counties. 9. The record if void of any non-self-serving evidence of the need for additional haulers of low-grade commodities in Lincoln, Wayne and Logan Counties. CONCLUSIONS OF LAW 1. The Applicant met its prima facie burden of proving some need for additional haulers of low-grade commodities in Cabell County. The Applicant has equipment, financial ability and is fit and proper to hold a certificate in Cabell County. 2. The Applicant failed to show a need for additional haulers of low-grade commodities in Lincoln, Wayne and Logan Counties and therefore did not meet its prima facie burden in this case with respect to these three counties. 3. The Applicant failed to show a need for additional haulers of coal in Lincoln, Cabell, Wayne and Logan Counties and therefore did not meet its prima facie burden of proving a need for additional haulers of coal. 4. The Protestant did not meet its burden of proving that the operation of another carrier would be ruinous to its business by a preponderance of the independent evidence. -9-

10 5. The Examiner finds that the public will be convenienced by the certification of an additional hauler of low-grade commodities in Cabell County. ORDER IT IS, THEREFORE, ORDERED Lat Kyle Scragg, doing business as K & 4 Trucking Co., be, and is hereby granted P.S.C. M.C. Certificate No. F-6601, to operate as a common carrier by motor vehicle in the transportation of-- low-grade commodities within and between points and places in Cabell County on the one hand and points and places in West Virginia on the other hand. All shipments will begin or end in Cabell County, West Virginia. IT IS FURTHER ORDERED that the rates in the application begin $1.00 per ton for the first mile and $0.10 for each additional ton mile there- fore be, and those rates hereby are, approved for the services provided under this certificate IT IS FURTHER ORDERED that K & M Trucking Co. commence operation, including registering vehicles with the Motor Carrier Division, within sixty (60) days from the date of this Decision or the granted certificate will be null and void. IT IS FURTHER ORDERED that K & M Trucking Co. file a tariff with the Commission reflecting the rates and charges herein approved. IT IS FURTHER ORDERED that Kyle Scragg, doing business as K & Trucking Co., immediately cease and desist all unauthorized trucking until such time as he has secured proper Public Service Commission au- thoriz at ion. M -10-

11 . IT IS FURTHER ORDERED that the Executive Secretary of the Commission 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 a Hearing Examiner'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 to make any Hearing Examiner's Order or Decision the order of the Commission sooner than five (5) days after approval of such waiver by the Commission. AML:dfs Hearing Examiner -11-