PUBLIC SERVICE COMMISSION CHARLESTON

Transcription

1 CHARLESTON ' '., s-,,.. At a session of the in the City of Charleston on the 17th day of March, M. C. CASE NO C HARRY THOMAS, doing business as THOMAS EXCAVATING, Moundsville, Marshall County. Application for a certificate to operate as a common carrier. COMMISSION ORDER AFFIRMING ADMINISTRATIVE LAW JUDGE'S DECISION On January 26, 1988, an Administrative Law Judge (Am) entered a decision which denied the issuance of a certificate of convenience and necessity to Harry Thomas, dba Thomas Excavating, Moundsville, Marshall County (the Applicant), to operate as a common carrier by motor vehicle in the transportation of earth, sand, gravel, asphalt and other low grade commodities and coal for domestic and commercial consumers within and between points and places in Ohio, Marshall, Wetzel, Tyler, Brooke and Hancock Counties on the one hand, and points and places in West Virginia on the other hand, with all trips originating or terminating in said counties. In support of this decision, the AU concluded that the Applicant failed to establish that the public convenience and necessity required the proposed common carrier services and that the service furnished by the existing common carriers is not reasonably efficient and adequate. On February 11, 1988, the Applicant filed exceptions which were outside of the statutorily imposed time limit pursuant to W.Va. Code In his exceptions, the Applicant alleges that the ALJ erred

2 in not finding that the Applicant initially established a prima facie case, the ALJ erred in not shifting the burden of proof to the Protestants, the Protestants failed to meet their required burden of proof that the general needs of the public are being met, the denial of the application is a violation of public policy and the ALJ erred in allowing into evidence, over objection, considering, and basing the decision upon testimony and documentary evidence concerning hours worked by Kittle Hauling employees, a Protestant. For the reasons set forth below, the Commission affirms the AU decision. The ALJ found from the evidence that the Applicant called one public witness, Mark Klug, who appeared involuntarily under subpoena and stated that he did not encourage or support the application. The witness testified as to the Applicant's experience, having used the Applicant's service in Brooke, Wetzel and Marshall Counties. No testimony was offered concerning services in Hancock, Ohio and Tyler Counties. Furthermore, the witness' testimony generally only demonstrated that the Applicant's sewices may be required during the peak periods in the asphalt business. The witness gave no testimony concerning a need in the transportation of other materials sought in the application. He declined to state that there exists a general public need for the Applicant's service. No evidence whatsoever was presented regarding the need for other types of service beyond assistance during peak periods in the transportation of paving asphalt. The Protestants, Kittle Hauling and Supply Company, Inc., a corporation, Kevin D. Rine, dba KDR Contracting, and Brad N. Varlas, dba Varlas Trucking, presented the testimony of two public witnesses 2.

3 who testified that it would be unlikely they would use the Applicant s proposed services and that their needs were being met be the Protestants. The two public witnesses further testified that any reduced revenues caused by additional competition would have, in their opinion, a detrimental effect upon the transportation operations of the Protestants presently serving the general public. The Protestants themselves offered evidence in their own behalf which reflects diminished trucking service business in the area of the application which has had an adverse and detrimental affect upon each of the Protestants. One of the Protestants, Mrs. Kittle, President of Kittle Hauling and Supply Company, Inc., testified that from business records of the Company from August, 1986 through May 1987, Kittle Hauling employees went from a normal work week of fifty (50) hours down to less than thirty (30) hours; in 1985 her business records showed that all employees averaged forty-three (43) hours a week and that in 1986 they worked anywhere from twenty-four (24) to thirty-two (32) hours. From this evidence, the AIJ concluded that, although the Applicant has established that he has sufficient resources necessary to carry on the type of operation that he proposes, the Applicant failed to establish that the public convenience and necessity requires the proposed common carrier service and that the service furnished by the existing common carriers is not reasonable efficient and adequate. Although the Commission discourages the filing of exceptions outside of the statutorily imposed time limit, the Commission is of the opinion that in the present case, the public interest will be served by treating the present exceptions as timely filed and addressing the merits of said exceptions. - 3.

4 The Commission is in agreement with the AU's determination that the Applicant has failed to meet his burden of proof as defined in Weirton Ice & Coal Supply Company v. Public Service Commission, 161 W.Va. 141, 240 S.E.2d 686 (1979); Charleston Transit Co. v. Public Service Commission, 142 W.Va. 750, 98 S.E.2d 437 (1957); Ford Brothers, Inc. M.C. Case No (April 9, 1981); Harless Excavating Company, Inc., M. C. Case No (April 23, 1982); Mac's Wrecker Service, Inc., M.C. Case No. 3358, (December 13, 1979). Furthermore, the Applicant's exceptions did not bring forth any new evidence, arguments or meaningful allegations of error on the ALJ's behalf which would merit a revision, modification or reversal of the Am's decision. The Applicant further alleges that the AU erred in allowing into evidence, over objection, testimony and documentary evidence concerning hours worked by Kittle Hauling employees because the time period in question related to a week containing a Saturday, a Sunday, New Year's Eve and Christmas Day. The Commission finds that no error has been committed on the ATJ'S behalf. The Protestant, Mrs. Kittle, based her testimony on data from August, 1986 through May, (AU's decision, pp. 12, 17). Furthermore, all of the Protestants and the Protestant's public witnesses testified as to the general depression in the trucking business within the proposed area of service. The ALJ also found that the Protestants are adequately sewing the same territory sought by the Applicant. FINDINGS OF FACT 1. The Applicant was denied a certificate of convenience and necessity to operate as a common carrier by motor vehicle in the 4.

5 a * -, transportation of earth, sand, gravel, asphalt and other low-grade commodities and coal for domestic and commercial consumers within and between points and places in Ohio, Marshall, Wetzel, Tyler, Brooke and Hancock Counties on the one hand and points and places in West Virginia on the other hand, with trips originating or terminating in said counties. 2. The Applicant filed, outside the statutorily imposed time limit, exceptions alleging that the ALJ erred and requested that the Commission reverse the decision and issue the certificate of convenience and necessity. CONCLUSIONS OF LAW 1. The public interest will be served by treating the exceptions as timely filed and addressing the merits of said exceptions. 2. The Applicant's exceptions did not bring forth any new evidence, arguments or meaningful allegations of err on the AU's behalf which would merit a revision, modification or reversal of the AU's decision. ORDER IT IS, THEREFORE, ORDERED that the Am's decision be affirmed. IT IS FURTHER ORDERED that the Executive Secretary of the Commission serve a copy of this order upon all parties of record. NJP: sf