PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON

Transcription

1 CHARLESTON FINAL Entered: December 10, 1991 Y.C. CASE NO AC JOHN EVANS and MELVIN EVANS, doing business as M & M TRANSPORT, Hilltop, Fayette County. Application for an amendment of certificate. RECOMMENDED DECISION PROCEDURE On January 2, 1991, John Evans and Melvin Evans, doing business as M ti M Transport, Hilltop, Fayette County, filed an application to amend 2nd clarify P.S.C. M.C. Certificate No. F Said certificate, as smended and clarified, will read as follows: to operate as a common carrier by motor vehicle in the transportation of motor vehicles--including, but not limited to, wrecked and/or disabled motor vehicles-- between points and places in Fayette County, on the one hand, and places in West Virginia, on the other hand in lieu of existing authority under said certificate. The Applicant gave notice of the filing of this application in sccordance with the Commission's requirements and upon receipt of protest, this matter was set for hearing to be held in the Commission's Hearing Room, 201 Brooks Street, Charleston, West Virginia, on February 25, rhe hearing was held as scheduled. The Applicants, John and Melvin Evans, sppeared at the hearing pro se. The Protestant, Oak Hill Wrecker Service, sppeared by its Counsel, Charlotte R. Lane, Esquire. The Protestant, BTB rjrecker Service, appeared by its Counsel, J. A. Bibby, Jr., Esquire. EVIDENCE PRESENTED Mr. William Campbell testified for the Applicant that for the past light years he has worked on and off for wrecker services operating both sling and wheel-lift type wreckers. He stated that, if there was a vehicle over a hill, it could be retrieved by use of a roll-back truck, slthough it would be harder and more time consuming then using a regular type of wrecker. Mr. Campbell further noted that there would be some city streets in Oak Hill in which a roll-back wrecker could not be backed into. He stated that he presently is not employed but his last employer was Oak

2 Hill Wrecker for whom he worked five months. Before that he had worked for Clay's Wrecker Service. (Tr., pp ). Mr. Robert Jeffries also testified for the Applicant and indicated that he had driven a truck all of this life, having operated a wrecker company in North Carolina for one and one-half years. He also remarked that, with the narrow streets in Oak Hill, it would be hard to use a roll-back without a helper to winch a vehicle onto the truck. He stated that, within the last year he personally has had need for a wrecker and has called Mr. David Vargo, who came quickly. This was his only incident of need. Mr. Jeffries indicated that he has seen BTB wreckers operating in Oak Hill and at the time they seemed to be doing an adequate and efficient job. (Tr., pp ). The next witness to testify for the Applicant was Mr. James Bickford. Mr. Bickford indicated that he has worked part-time as a helper for M & M Transport and has not personally needed a wrecker within the past year. In his position as a helper, he has seen BTB Wrecker Service performing wrecker functions at accidents in Fayette County and from his observations he opined that they were doing a good job. He stated that he only worked for M C M Transport when they needed some extra help and he has always been a helper and never the driver. (Tr., pp ). Ms. Patricia Tracy indicated that she lives in Oak Hill and has been on a wrecker call with M & M Transport, at which time she was functioning as a helper and would assist in hooking the car and helping to maneuver it onto the bed of the roll-back wrecker truck. She stated that in her experience in doing this, there were instances when a roll-back truck could not back into a driveway in Oak Hill. Ms. Tracy further testified that she had not observed BTB wrecker trucks at the scene of a wreck in Fayette County, but knew they operated in Oak Hill. She herself has not had any personal need for wrecker service. (Tr., pp ). Mr. John Evans, the brother of Melvin Evans, explained that the operations of M & M Transport are located in Oak Hill and they operate with one piece of equipment, a one-ton roll-back wrecker. The office for their business is located at Ashland's Recycling and Junk Yard and it is here they keep their wrecker. He stated that M & M Transport provides 24-hour service which is accomplished by him keeping the wrecker truck at his home and having the calls forwarded. Both he and his brother, Melvin, do the driving for the business. He stated that, when their authority was originally granted, it excluded transportation by sling-type or wheel-lift wrecker vehicles and this amendment and clarification seeks to add the use of these vehicles back into the authority, which he explained would result in savings in cost to customers. Mr. John Evans also explained that M & M Transport also operates the Fayette Auto Wrecking, which has no Public Service Commission authority, but is a salvage yard. Most of the business of M & M Transport comes from the immediate Oak Hill area. He explained that, because the only vehicle which they now have is a roll-back wrecker, if this amendment and clarification is approved, it would be necessary for them to obtain additional vehicles. M & M Transport has looked into the purchasing of these vehicles and they have the assets to purchase them, and have them insured. He explained that at the present time, M & M Transport is not making any money on its wrecker business. Since they

3 have been in business, he and has brother have not received a call for roll-back service that they could not handle. He stated that M & M Transport advertises in the yellow pages and in some local trade papers. The sling-type or wheel-lift wreckers which they would purchase if this application is approved would probably be of the one-ton capacity. While he usually keeps the truck at night, who ever has the truck will make the call. Mr. Evans explained that, if they receive a call for a vehicle that cannot be handled by their roll-back truck, they will refer the caller to someone who can do the job. (Tr., pp ). The brother of John Evans, Melvin, also made a sworn statement on behalf of the application. He stated that he is in business with his brother as a partner in M & M Transport. Rather than reiterate the testimony which his brother had just previously given, he adopted it as his own. (Tr., p. 63). Mr. Melvin Evans explained that he personally has had experience with both sling and wheel-lift wreckers and that two years before he had worked for a wrecker company in Ohio that had both types of wrecker equipment. The number of calls that M 6, M Transport receives per month were estimated by Mr. Evans as approximately ten to eleven. He also explained that it presently costs approximately $1,600 per year to insure a wrecker. He stated that he personally has seen wreckers owned by BTB Wrecker doing business in his area. In concluding his testimony he indicated that, if the previously held authority is amended and clarified, they would probably get one additional wrecker which has both wheel-lift and sling-type capabilities. (Tr,. pp ). I' With the testimony of Mr. Melvin Evans, the Applicants rested their case and presented no further evidence, whereupon several witnesses gave testimony in behalf of the protest made against this application. The first of the witnesses to speak in protest was Mr. Tom Ballard who explained that he owns and operates BTB Wrecker Service, which has Public Service Commission authority to operate in Fayette County and points and places in West Virginia. Under this authority they advertise in the Oak Hill Directory and have a business located on Main Street in Oak Hill. Twenty-four-hour service is provided by using four wrecker trucks licensed with the Commission. BTB has two employees and during the year of 1990 made a profit of $1,000 to $1,250, He stated that he is protesting this application because BTB Wrecker does not need the competition. Should M & M Transport get a sling-type wrecker, this would take business away from him and would have an adverse affect on his business. He explained that he was not aware of any complaints that have been filed against BTB Wrecker with the Commission. BTB gets approximately thirty to forty calls per month on a regular basis and from this may show a profit of between $1,000 and $1,500 for the year. He felt that the introduction of any competition to their service would inhibit their ability to make money and he opined that he believed that the wrecker companies presently providing service in the area covered by this application were providing reasonably efficient and adequate service. Mr. Ballard further testified that, while he and his wife own BTB Wrecker, Mr. Delbert Patton actually operates it for them because Mr. Ballard is a West Virginia State Policeman. In this connection, he explained that, when on the job as a State Trooper, if he needs a wrecker, he will call the one that is given as a preference by the parties and if no preference is made then he will call PueLIc SERVICE COMMISSION

4 either Oak Hill Wrecker or BTB Wrecker Service. He uses no rotation. Mr. Ballard further explained that when no personal preference is expressed by the owner of the vehicle to be towed, then the decision as to who will be called is his to make. Mr. Ballard concluded his testimony by stating that police calls amount to approximately thirty percent of BTB Wrecker Service's total business and these are mostly from other than the State Police, including city and county law enforcement agencies. (Tr., pp ). Ms. Aubrey Reiner stated that she is in the cattle business, farming and does dairy farming. Within the past year she explained that she has had need to use a wrecker approximately four times. On those occasions she used BTB Wrecker Service on all occasions. Ms. Reiner explained that on those four occasions she received very good service which included quick response time and the providing of an experienced drive that used good judgment in retrieving a vehicle that had gone over a hill. From her own experience, she did not believe that there was need for more wrecker authority in the area. Besides BTB, Ms. Reiner testified that she had used other wrecker services and has never received any bad service from them. She further testified that, if she needed a wrecker and could not get a hold of BTB, she would call another wrecker service. The most recent incident of a wrecker need was in April, on which occasion she used BTB. (Tr., pp ). Mr. Wilbur Toney testified in protest as the owner of Oak Hill Wrecker Service since Oak Hill has six wreckers including a heavy duty tandem vehicle. Its Public Service Commission authority is for Fayette County and they presently have four employees. Oak Hill Wrecker also operates on a 24-hour basis and is the only wrecker service in the area that has a dispatcher on duty 24-hours per day. Mr. Toney explained that Oak Hill Wrecker receives calls from the local police departments and during the last year there was not a single call that they could not respond to. He further explained that in 1989, his company experienced a financial lost. Mr. Toney expounded that, because business is bad in the wrecker business in West Virginia and in Fayette County, the receipt by M & M Transport of any additional authority would cause his company a financial hardship. Because of this, he believes that the existing wrecker companies provide sufficient service for the area. Mr. Toney further testified and explained that of the eighty wrecker calls that his company receives, a majority of them would come from the general public rather than from police agencies. He himself actually owns the wrecker service and his son manages it. He was not aware of any time that Oak Hill Wrecker was called and they were not able to respond. Besides owning the wrecker service, Mr. Toney indicated that he is also the City Judge of Oak Hill, Mt. Hope and Pax, and also owns a service station and car mechanics shop. As City Judge he has nothing to do with the wrecker calls being dispatched, as they are handled on a rotation list. Each of the police agencies in the area use a rotation system. (Tr., pp ). Mr. James McCoy has been Chief of Police of Oak Hill for three years and during the course of this duties as Chief of Police, has had occasion to call for wrecker service. He explained that, when such a need arises, he will contact the dispatcher for the City of Oak Hill who has a list of four companies that it uses on a rotation basis. In further testimony, PueLic SERVICE COMMISSION

5 Chief McCoy indicated that Oak Hill Wrecker provides excellent service. He explained that on those infrequent occasions when the wrecker first called could not respond to the call, the dispatcher went to the next wrecker on the list and they always had someone available. Because of his past experience Chief McCoy testified that he was not aware of any additional need for wreckers presently in Fayette County. During this testimony he referred to and introduced dispatcher's records of the Oak Hill City Police and upon review could not find a single incident when a wrecker could not be obtained. Because of this he believes that the existing wrecker services in Fayette County are adequate. He was also not aware of any complaints filed against BTB Wrecker Service and described it as performing good, reasonably adequate wrecker service. (Tr. I pp ). Mr. Steve Kessler has been a Deputy Sheriff for Fayette County for ten years. For three of those years he has worked in the areas of Fayetteville and Ansted, and north of the New River Gorge Bridge. In instances of wrecker need, if the vehicle owner has no preference, the Sheriff's Department dispatcher will use a rotation list. He stated that Oak Hill Wrecker is equipped to handle all types of vehicles, including large trucks. Deputy Kessler concluded his testimony by indicating that from his experience, he believed that the existing wrecker services were providing reasonably efficient and adequate service. (Tr., pp ). Mr. Delmus Loghorn also testified for the protest of Oak Hill Wrecker, as a Patrolman for the City of Oak Hill, a position he has held for eight years. In the capacity as Patrolman he has had need for wrecker service. As with Chief McCoy, if he has a need, he will call the dispatcher and a wrecker will be sent. From his personal experience he was not aware of any time that he needed a wrecker and one could not be sent. Based on this he opined that he did not see need for additional wrecker service in Fayette County. In his opinion, BTB Wrecker Service was providing adequate and efficient service. Even if the need involves a special type of wrecker, i.e. wheel-lift or roll-back, it will be provided. (Tr., pp ). The final witness to testify on behalf of the protest was Mr. Jim Sizemore. Presently Mr. Sizemore is a Corporal in the Mt, Hope Police Department and has been on the force for ten months. Prior to that he worked for the Towns of Gauley Bridge, Smithers and Ansted as a police officer. He stated that in working as a policeman for Mt. Hope he has had occasion to call for a wrecker. When he has a need, his dispatching is done through the Fayette County Sheriff's Department, which uses a rotation system. In the course of these duties he has had experience with Oak Hill Wrecker and has found it to provide reasonably adequate and efficient service. He concluded his testimony in protest by stating that he did not believe that there was need for more authority in Fayette County, and he stated that he would have no problem using the services of M & M Transport if it could supply the equipment needed, since he believes that all that they presently have is a roll-back truck. (Tr., pp ). With the testimony of Mr. Loghorn, the Protestants rested and, after closing statements made by the Counsel involved in this case in which they summarized their views concerning the granting of the amendment and clarification, the matter was submitted for a decision.

6 DISCUSSION OF APPLICABLE LAW BURDEN OF PROOF It is well-established in this State that one applying for a common carrier certificate over a defined territory must establish, to the satisfaction of the Commission, that public convenience and necessity require the proposed service. Weirton Ice and Coal Supply Company v. Public Service Commission, 161 W.Va., 240 S.E.2d 686 (1977), and West Virginia Code 824A-2-5. The Commission has interpreted this requirement 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 Excavatinq Company, Inc., M.C. Case No , April 23, The pertinent statutory language regarding the granting of applications for certificates of convenience and necessity is set forth in West Virqinia Code 24A-2-5(a), which provides, in part, as follows: [I]f the Commission finds from the evidence that the public convenience and necessity require the proposed service or any part thereof, it shall issue the certificate as prayed for, or issue it for the partial exercise only of the privilege sought, and may attach to the exercise of the right granted by such certificate such terms and conditions as in its judgment, the public convenience and necessity may require.... Before granting a certificate to a common carrier by motor vehicle, the commission shall take into consideration existing transportation facilities in the territory for which a certificate is sought and, in case it finds from the evidence that the service furnished by existing transportation facilities is reasonably efficient and adequate, the commission shall not grant such certificate. On December 20, 1989, the Supreme Court of Appeals of West Virginia issued a decision in which the Court stated that the quality of existing services was a controllinq factor in reaching a decision on whether or not a competing certificate of convenience and necessity should be granted under West Virginia Code 24A-2-5(a). (Stowers and Sons Truckinq Company, Inc. v. Public Service Commission of West Virginia, 387 S.E.2d 841 (1989). If those services are adequate, the certificate shall not be granted. The Court determined that the Public Service Commission has a mandatorv duty, established by the West Virqinia Code s24a-2-5, to consider evidence as to the sufficiency of existinq service and, if the services are adequate, the certificate shall not be granted.

7 FINDINGS OF FACT 1. On January 2, 1991, John Evans and Melvin Evans, doing business 3s M & M Transport, filed an application to amend and clarify P.S.C. M.C. Jertificate No. F Said certificate, as amended and clarified will read as follows: to operate as a common carrier by motor vehicle in the transportation of motor vehicles--including, but not limited to, wrecked and/or disabled motor vehicles-- between points and places in Fayette County, on the one hand, and places in West Virginia, on the other hand in lieu of existing authority under said certificate. (See, Application). 2. The original authority contained in P.S.C. M.C. Certificate Yo. F-6932 provided for the operation as a common carrier by motor vehicle in the transportation of-- motor vehicles--including, but not limited to, wrecked and/or disabled motor vehicles--weighing one-ton or less, excluding, however, transportation by sling-type or wheel-lift wrecker vehicles, between points and places in Fayette County on the one hand, and points and places in West Virginia on the other hand. (Commission Records). 3. Both John and Melvin Evans, who are brothers, testified on Dehalf of their application, explaining that they have only one piece of 2quipment, a one-ton roll-back wrecker truck and are applying to remove the exclusion to allow them to transport cars by sling-type or wheel-lift mecker vehicles in order to result in a savings in cost to the customer. (Tr., pp , 48-69). 4. Witnesses Messrs. William Campbell and Robert Jeffries testified that they have operated a wrecker in the past and opined that the streets 3f Oak Hill are so narrow that there would be times when a roll-back mecker would be unable to operate on the streets of Oak Hill. (Tr.,?p , 17-25). 5. The Applicant's witnesses, Mr. James Bickford and Ms. Patricia Fracy gave testimony but provided little information of probative value to the question of need for the amended authority. (Tr., pp , 35-44). 6. Appearing as witnesses in protest to the application were dessrs. Tom Ballard and Wilbur Toney who are both owners of certificated mecker operations with authority covering the area of Fayette County. 3ach testified that they have never had a call they could not respond to ind did not see need for additional competition in the area which would idversely affect they business. (Tr., pp. 80, 104). 7. Protestant witness Mr. James McCoy is the Chief of Police of Oak 3ill and indicated in his testimony that the City of Oak Hill uses four =-7-

8 wrecker companies on a rotation basis and each provides excellent service. (Tr., pp ). 8. Mr. Steve Kessler the Deputy Sheriff in Fayette County and explained that Oak Hill Wrecker is equipped to handle all types of vehicles and from his experience has been providing reasonably efficient and adequate service. (Tr., pp. 130). 9. Mr. Delmus Loghorn is a Patrolman for the City of Oak Hill and stated that Oak Hill Police Department used a rotation list for calling of wreckers and he opined that the existing wrecker companies, including Oak Hill Wrecker provide adequate and efficient service. (Tr., pp ). 10. Corporal James Sizemore works for the Mt. Hope Police and he also testified that, from his experience with Oak Hill Wrecker, it provided reasonably efficient and adequate service. (Tr., p. 139). CONCLUSIONS OF LAW I/ The Administrative Law Judge is of the opinion and finds that: 1. Since this amendment and clarification of P.S.C. M.C. Certificate No. F-6932 would expand the authority presently held under said certificate, the provisions of West Virginia Code S24A-2-5 which provide for the granting of a certificate of convenience and necessity, as interpreted by the Supreme Court of Appeals of the West Virginia in its recent decision in Stowers and Sons Truckinq Company, Inc. v. Public Service Commission of West Virginia, 387 S.E.2d 841 (1989) would be applicable in this case. 2. Since the uncontroverted evidence presented at the hearing by the Protestants shows that the currently certificated wrecker operators with authority to provide service in the area applied for by the Applicant are providing adequate and efficient service, the amendment and clarification of P.S.C. M.C. Certificate No. F-6932, as applied for, must be denied. ORDER IT IS, THEREFORE, ORDERED that the application of John Evans and Melvin Evans, doing business as M & M Transport, Hilltop, Fayette County, filed on January 2, 1991, 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. m c- m - 8 -

9 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 to 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 Commission. RWG:dfs Administrative Law Judge