PUBLIC SERVIqE COMMISSION OF WEST VIRGINIA

Transcription

1 i //7 PUBLIC SERVIqE COMMISSION OF WEST VIRGINIA CHARLESTON At a session of the OF WEST VIRGINIA, at the Capitol in the City of Charleston on the 21s.t: day of December, M.C. CASE NO BALL TRUCKING, INC., a corporation, Turtle Creek, Boone County. Application for a certificate to operate as a common carrier. M.C. CASE NO BALL TRUCKING, INC., a corporation, Turtle Creek, Boone County. Application for a certificate to operate as a common carrier. COMMISSION ORDER AFFIRMING HEARING E XAMINER S DEC ISION PROCEDURE On November 12, 1982, a Commission Hearing Examiner entered an order in each of the above styled and numbered cases granting the Applicant, Ball Trucking, Inc. (Ball or Company), a corporation, Turtle Creek, Boom County, P.S.C. M.C. Certificate Nos. F and F- 6307, respectively. P.S.C. M.C. Certificate No. F-6306 authorized the applicant to operate as a common carrier by motor vehicle in the transportation of low-grade commodities customarily transported by dump truck (specifically, however, excluding coal and salt) in Boone, Logan and Lincoln Counties on the one hand, and points and places in West Virginia on the other hand, provided however, that no transportation shall either originate or terminate in Kanawha, Cabell and Raleigh Counties from a base of operation located in Boone County, The following rates were approved by the Examiner:

2 Rates - Mileage Rates - $1.25 per ton mile for the first mile $0.15 per ton mile for each additional mile Hourly Rates - Single-axle Dump $32.00 per hour Tandem Dump $42.00 per hour Tractor-Trailer Dump $50.00 per hour Lowboy Trailer $42.00 per hour Minimum Charge - four ( 4) hours on any of the above. A customer shall be charged the lesser of the mileage rates or the hourly rates, but no job may be charged for less than four hours according to the applicable vehicle and rates. P.S.C. M.C. Certificate No. F-6307 authorized the applicant to operate as a common carrier by motor vehicle in the transportation of heavy machinery and equipment, and machinery and equipment used in the operation of general construction companies in the operation of coal mines in Boone, Logan and Lincoln Counties, provided, however, that Ball shall not transport machinery, equipment and other materials and supplier! used in the drilling, maintenance and operation of oil and gas wells and provided further, that petitioner shall conduct its business from a base of operation located in Boone County. The Examiner approved the following rates: $45.00 per hour In each case the Examiner deleted Mingo County from the authority requested by the Applicant. Hearing Examiner's Decision, Findings and Conclusions Nos. 6 and 7. By a procedural order entered on December 9, 1982, the Examiner extended the time to file exceptions to December 20, On December 20, 1982, one of the two Protestants appearing of recorc in this case, Hubert Jones, Inc., filed exceptions to the Hearing Examiner's Decision, submitting that the Examiner's decision "should be denied and the application should be dismissed". The Protestant made OF ::m"*

3 seven allegations of error committed by the Examiner. Since Hubert Jones, Inc. only appeared in protest to the issuance of the authority requested in M.C. Case 21437, the exceptions filed in this matter will only be considered and reviewed as applying to the Examiner' decision in that case. EVIDENCE Pages 2 to 15 of the Hearing Examiner's Decision contains a satisfactory discussion of the testimony of the following six witnesses who appeared of record in this proceeding: For the Applicant: 1. Mr. Rick Sheets, the Purchasing Agent for Kanawha Coal Company, (also known as Madison Mines). 2. Mr. James Stollings, the Operator of Stollings Mining, Incorporated. 3, Mr. Douglas Harless, President of Harless Excavating Company. 4. Mr. William Frank Ball, the Applicant. For the Protestants: 1. Mr. Robert Vance, the Secretary of Stollings Trucking Company (no relation to Stollings Mining, Inc.) who has been in businesr since 1978 with authority to transport heavy machinery equipment in Loga County and between points and places in Logan County and points and places in West Virginia. 2. Mr. Mack Lilly, Vice President and Manager of Hubert Jones Inc., who has been in business for four years and is a heavy hauler wit1 cranes and statewide authority. Mr, Lilly stated that Hubert Jones, Inc CH

4 has some authority to haul low-grade commodities and that their terminal is located in Dunbar, adjacent to LAW W.Va. Code 524A-2-5 governs the issuance and/or amending of a motor carrier certificate of convenience and necessity and provides that: (a)... if 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. (b)... in establishing that public convenience and necessity do exist the burden of proof shall be upon the applicant. The West Virginia Supreme Court has stated that one applying for a common carrier certificate under W.Va. Code 524A-2-5 need only to show ai affirmative need for the proposed service. Weirton --- Ice and Coal Supply Company v. Public Service Commission, (1977). - W.Va. -, 240 S.E. 2d 686 Past unauthorized or illegal operation does not, ipso facto, bar thc grant of operating authority upon subsequent application. The mere fact of prior operation without Commission approval is not per se equivalent to an offense which will prohibit absolutely the acquisition of proper authority when application is subsequently made. This rule is especiall: applicable when the operation has been conducted in good faith and under

5 "color of authority" and does not represent a willful and defiant disregard of the law. In Aaacon Auto Transport, Inc., - v. United States, 317 F. Supp (S.D. N.Y. 1970), the Court stated that an application for a certificate of convenience and necessity for motor carrier service is not automatically denied because of prior illegal operations. The United States District Court of Vermont went one step further in the cas of St. Johnsbury Trucking Company - v. United States, 326 F. Supp. 938 (1971) when the Court stated at page 942: "The illegality of past willful operations does not ipso facto bar the granting of a certificate by the Commission". See also, Armored Carrier Corp. - v. United States, 260 F. Supp. 612 (E.D. N.Y. 1966) where the Court stated at page 615: "we find that past willful misconduct is not, as a matter of law, sufficient to bar a grant of authority. Rather, the I.C.C. is to consider such willful misconduct as an element in assessing the applicant's present and prospective 'fitness' within the Act". Federal and State Courts alike have held that illegal operation is not a bar to the granting of authority upon subsequent application, especially, if conducted in good faith and under a color of authority. Slay Transportation Co., Inc. - v. United States, 353 F. Supp. 555 (E.D. Mo. 1973). Lynden Transfer, Inc, v. United States, 263 F. Supp (W.D. Wash. 1967); Armored Carrier Corporation - v. United States, 260 F. Supp. 612 (E.D. N.Y. 1966); Dilts Trucking, Inc., - v. Peake, Inc., 197 Neb. 459, 249 N.W. 2d 732 (1977); Merz White Way Tours - v. Pennsylvania Public Utility Commission, 204 Pa.Super. 43, 201 A.2d 446 (1964); Johnstom-Pittsburgh Express, -Inc. - v. Pennsylvania Public Utility Commission, 5 Pa. Cmwth. 521, 291 A2d 545 (1972); Lancaster OF W m i N I A CH

6 Transportation Company - v. Pennsylvania Public Utility Commission, 181 Pa. Super 129, 124 A.2d 380, (1956). In Best Way Motor Freight, Inc. - v. United States, (W.D. Wash. S.D. 1966) 253 F. Supp. 314, the Court states at page 319: "In our opinion, the probative value of evidence pertaining to a particular operation, in determining an issue of public convenience and necessity, is not affectec by the fact that the operation may have been unlawful. If such operatior demonstrates a need for such a service, the need is none the less becausc of the fact.,. operating authority was lacking." R-C Motor Freight Lines, Inc. - v. United States, 241 F. Supp. (M.D. Fla. 1965). However, the Court stated in Lynden Transfer, Inc. - v. United States, supra, that where those operations are carried on in a willful disregard of the law, they may not be used as evidence of need. The Court would not permit a carrier to better its position by electing to flaunt the law rather than to obey it. In Florida-Texas Freight, Inc. - v. United States, 373 F. Supp. 479 (S.D. Fla. 1973) Affmd. 94 S.Ct (1974) SYl. 4 states: "Where prior unauthorized activities have been conducted by applicant seeking operating authority from Interstate Commerce Commission, such activities must be considered in determining whether thc public convenience and necessity require the grant of authority sought, when such prior unauthorized activities have been under a 'claim of right' or a 'color of right"'. In Dilts Trucking, Inc. - v. Peeke, Inc., supra at page 737, the Nebraska Court states: "Although past operations, standing alone, are not conclusive proof of a public need for their continuance, they are, where not conducted in willful disregard of the law, entitled to PUBLIC SERVIC OF WE/(NIA CH OMMISSION

7 consideration in determining whether, on balance, the public convenience and necessity require authorization of such operations". The Pennsylvania Court has held that evidence of prior illegal operation when conducted in good faith could be considered as going to the issue of need as well as the inadequacy of existing service. Tranter - v. Pennsylvania Public Service Commission, 4 Pa. Cmwlth. 585, 288 A.2d 837 (1972); D.F. Bast, Inc. - v. Pennsylvania Public Utility Commission, 397 Pa. 246, 154 A.2d 505 (1959); Lancaster Transportation Company - v. Pennsylvania Public Utility Commission, supra; Johnstown-Pittsburgh Express - v. Pennsylvania Public Utility Commission, supra; Merz White Way Tours - v. Pennsylvania Public Utility Commission, supra. In West Virginia to establish that public convenience and necessity require the proposed service, an applicant must produce public witnesses who can testify that the proposed service is needed in the area of application. Quality Builders, M.C. Case No (1978). If the evidence submitted by the applicant reveals the existence of some need in the proposed area of the application, he has made a prima facie case that the public convenience and necessity require the tendered service thereby creating a presumption that the services furnished by existing transportation facilities are not reasonably efficient and adequate in meeting the needs of the public in the proposed area of service. Mac's Wrecker Service, Inc., M.C. Case No (1979); Ford Brothers, Inc., M.C. Case No (1981). Once an applicant has submitted some evidence of need for his proposed service, the burden is shifted to the Protestants who, to prove that existing service is reasonably efficient and adequate and thus that the certificate should be denied, must establish (a) that the granting of the certificate would be detrimental PUBLIC SERVIC OF WCH a l N I A OMMISSION

8 to the public (because, for example, additional competition would be ruinous) and (b) that all reasonable needs in the area of the application are being met. Once an applicant has established a prima facie case, Protestants must prove that the granting of the requested authority would affect the operations of existing common carriers to an extent contrary to the public interest. Evidence other than self-serving statements of Protestants as to the adequacy and efficiency of their concerns in meeting public demand must be presented to prevent such a grant. Ford, supra. Evidence of service conducted in good faith and under color of authority, although illegally and unlawfully rendered, and the supporting testimony of twenty-three shipper witnesses, may be considered as evidence of public convenience and necessity and the inadequacy of the existing service. Re: Russell Transfer, Inc. - v. Allegheny Freight, M.C. Case No (December, 1978). More recently the Commission has determined that an applicant who has knowingly conducted a common carrier operation under contract carrier authority should not be rewarded for his illegal activity and that evidence of illegal operations should not be considered as proof of public convenience and necessity. M d W Contractors, Inc., M.C. Case No , Order Affirming Hearing Examiner's Decision, (January 21, 1983). In that case the Commission agreed with the Examiner that the applicant made no excusable mistake, nor did the evidence show that a clear and convincing need on behalf of the public existed that could not be otherwise satisfied. COMMENTS ON PROTESTANTS' EXCEPTIONS The protestant, Hubert Jones, Inc., raised the following seven exceptions to the Hearing Examiner's Decision. OF W=NlA CH

9 1. The Examiner ignored and misinterpreted the testimony offered by the Applicant in M.C. Case No, for a certificate of convenience and necessity to operate as a common carrier in the transportation of heavy machinery and equipment. Comment - Not true. All of the statements contained in pages 1 through 5 of the Exceptions are nothing more than a summary of the Examiner's discussion of the testimony of the Applicant's and the Protestants' witnesses. Such summary does not support the allegation that the Examiner ignored or misinterpreted the Applicant's testimony in M.C. Case No The Examiner's order is in error and contrary to the law as set forth in Chapter 24A of the W.Va. Code in that the Examiner ignored the testimony offered by the Applicant's and Protestants' witnesses. will be denied. Comment - Since no support is given for such allegation, it 3. The Examiner's order is in error and contrary to the law in that it completely ignores the requirements of Chapter 24A of the W.Va. - Code and the decisions of the Supreme Court of Appeals of West Virginia. will be denied. Comment - Again, no support is given for this argument and it 4. The Examiner, by referring to a prima facie case is attempting to legislate, which is the responsibility of the Legislature and not the Public Service Commission. Comment - The Examiner properly evaluated the evidence presented by the parties in compliance with W.Va. Code 524A-2-5 and the case law of the Commission. 5. The Examiner's decision is in error because it condones and approves and encourages non-regulated carriers to operate contrary to the OF W-NIA CH re

10 laws of this State and encourages the public to use the services of such non-regulated carriers, which deprives the State of necessary revenues derived from the operation of regulated carriers; encourages unemploymenl of employees of regulated carriers; is a direct reflection on the total lack of enforcement of the Commission's Field Investigators and the law enforcement officials of this state because it is inconceivable that sucl an extensive operating violation of the laws of this State could go undetected by all such agenies for such a long period of time. The Protestants' counsel contends that, to his knowledge, the Commission has never permitted an applicant to use illegal operations to show a need foi a public service. Such has always been a strong indication of the unfitness and undesirability of permitting such a person to have authority. Comment - As noted by the Examiner (paragraph 8 of Findings an( Conclusions) the illegality of past willful operations does not automatically bar the granting of a certificate of convenience and necessity. However, the Commission should and does consider willful misconduct as an element in assessing the applicant's present and prospective fitness to hold a certificate. Past operations, although illegal, could be considered by the Commission in determining whether there exists a public need for the proposed service if such operations were provided in good faith and under color of authority. Mr. Ball's statements that he operated with full knowledge that such acts were in violation of the law effectively exclude such operations from Commission consideration of public need for the requested authority. (Tr. pp. 88, 91-92, , ). Nonetheless, the statements of the Applicant's three public witnesses regarding their dissatisfaction with or the OF CH

11 inadequacy of the existing service in the area is sufficient to support the Hearing Examiner's conclusion that the Applicant had established a prima facie case to the extent of the authority granted. Although the Examiner did not specifically refer to the evidence presented by the Protestants in his Findings and Conclusions, they each failed to meet their burden of proof in rebutting the Applicant's case. Thus, the Examiner's decision should be affirmed in that respect. It should be pointed out that the provisions of Article 7 of Chapter 24A of the W.Va. Code can lead to the imposition of criminal sanctions upon illegal operations. 6. The Examiner is in error because the granting of the certificate deprives the present common carriers of all property and investments in the same in West Virginia which is contrary to the laws of West Virginia and the West Virginia and United States Constitutions. Comment - The exceptions filed by the Protestants cite to no law or case or any portion of the West Virginia or the United States Constitutions which the Examiner has violated nor do they cite to any evidence in the record to support such allegations. As previously noted the Examiner did not specifically refer to the evidence presented by the Protestants ' in its Findings and Conclusions. However, implicit in his finding that the Applicant had made a prima facie case supporting the issuance of a portion of the requested authority is the finding and conclusion that the Protestants' failed to meet their burden of proof. See pages 7 and 8 herein. 7. The Examiner's decision is contrary to the law and the evidence presented at the hearing and is arbitrary and capricious, and should be denied by the Commission. PUBLIC SERVICE MMISSION OF Wcn E H I N l A

12 Comment - Again, the Protestant failed to cite to any law or evidence to support its position and allegation of arbitrariness and capriciousness. It merely tells the Commission to read the transcript searching for evidence to support the Protestant's position. In reviewing the record in this case, we do not find that the Examiner has committed reversible error. DISCUSSION The Commission will not revise, modify or reverse a Hearing Examiner's decision unless it is based upon findings that are arbitrary, contrary to the evidence or without evidence to support them, -- B&O Railroad v. PSC, 99 W.Va. 670, 130 S.E. 131 (1925), or unless the decision is based on a mistake of law or misapplies legal principles. Preston County Light & Power Co. -v. - PSC, 297 F. Supp. 759 (S.D. W.Va., 1969); United Fuel Gas Co. -v. - PSC, 143 W.Va. 33, 99 S.E. 2d 1 (1957); Wilhite -v. - PSC, 150 W.Va. 747, 149 S.E. 2d 273 (1966); Weirton Ice and Coal Supply Co. --- v. PSC, W.Va S.E. 2d 686 (1977); Virginia Electric and Power Co. --- v. PSC, W.Va S.E. 2d 698 (1978). The Commission will also reverse a Hearing Examiner's decision where it is contrary to lawful Commission practice or policy. Mac's Wrecker Service, Inc., M.C. Case No, 3358 (1979); Washington Oil Co., Case No G-X, 68 ARPSCWV 1573 (1981). In reviewing the Hearing Examiner's Decision and the record in this proceeding, the Commission does not find that any of the prerequisites for the revision, modification or reversal of the Examiner's decision have been met. Thus, his decision should be affirmed. Nonetheless the PUBLIC SER OF W E ~ ~ ~ s ' o N CH

13 following three issues raised by the exceptions filed in this case warrant further discussion. 1. Were the Applicant's previous illegal operations conducted in good faith and under the color of authority? The evidence supports an answer of "no". Pages 88, 91, 91, , 105, 108 of the Transcript and the lack of any authority from this Commission to operate support the conclusion that the Applicant's operations were not conducted in good faith or under color of authority and thus must be excluded in determining whether Ball has presented sufficient evidence of public convenience and necessity to support the issuance of the requested authority. 2. If the evidence relating to the Applicant's illegal operations is excluded, is the supporting testimony of the three shippers sufficient to support the conclusion that the Applicant has established a prima facie case that the public convenience and necessity require the Examiner's issuance of authority? With regard to issue No. the f o 1 lowing testimony of the supporting shippers support a prima facie public need for an additional hauler of heavy machinery in Logan, Boone and Lincoln Counties: (a) Mr. Rick Sheets, purchasing agent for Kanawha Coal Company Madison mine - (1) His company would derive an advantage from having a locally-based hauler, because his company's shop often only gives him one day's notice to have something moved and because other haulers often require several days' notice, this would put his shop in a bind if they cannot get the item moved out, which, in turn, would cost the company money. To have the Applicant available would solve this problem because he is local and could be there more quickly after a short notice. (2) In the past, they have used Hubert Jones, Inc., PUBLIC SER OF W Clj ~ N ~ ~ ~ s ' o N

14 which is a Kanawha County based company to move items of heavy equipment, but this company requires several days' notice to be given. They have used Stollings Trucking Company, Inc. for trips that exceeded their operating authority, which is limited to Logan County. His primary purpose in supporting this application for heavy hauling is for his company's transportation needs in Boone County, On one occasion, in about June of 1981, he had occasion to call Hubert Jones with a request to move a piece of equipment in a couple of days, and they could not accommodate him. He emphasized that common carriers are the only source that he has for hauling his heavy equipment. The granting of this certificate for heavy hauling would be a convenience to his company. In the past he has called Hubert Jones, Stollings Trucking Company and R.L. Jeffries. His company had no coal production and didn't need the hauling services at the time of the hearing because they were shut down, however, he expects that when they go back into production on September 7, 1982, they will once again need heavy hauling capability, His company has a need for the transportation of heavy equipment consisting of continuous miners, shovel cars, pinners, feeders and possibly, a small dozer occasionally (Tr. pp ). Mr. James Stollings, the operator of Stollings Mining, Inc. - Mr. Stollings has a need for the transportation of heavy equipment consisting of continuous miners, roof bolting machines, shuttle cars, dozers and end-loaders from Boone County either into Logan or Raleigh County and some into Lincoln County. He has called Mr. Gaylock in the past but he would never show up. He has used Stollings Trucking but most of the time they would be a day or so late, if they showed up at all. He has used Hubert Jones on one occasion and found the service adequate except for the price. OF W E ~ N I A cn

15 (5) In 1980 he needed to have a dozer moved but Stollings Trucking wouldn't move it, and after he didn't get any calls back, he made other arrangements for the movement of the dozer. The last time they had called for the hauling of heavy equipment was in the Spring of The last year or so he has been using the services of Mr. Ball to haul his heavy equipment between Boone and Logan Counties even though Mr. Ball did not have authority. (6) Stollings Trucking is located about 30 miles from his mine, while Mr. Ball's facilities are only about two and one-half miles away. In the past year he has used the services of J. & M. Machinery out of Beckley to haul heavy equipment. (7) Since Stollings Mining does not move a great amount of heavy equipment, they move some of it themselves. (Tr. pp ). I (c) Mr. Douglas Harless, President of Harless Excavating Co.- (1) His company has the need to move heavy equipment such as bulldozers and end-loaders primarily in Boone, Logan and Lincoln Counties. He currently owns one tractor and trailer which is used as the primary source in moving their equipment. However, on occasion, they hire other trucks to meet their extra needs. (2) His company has never used Stollings Trucking because they didn't know about them and had never been solicited by them for business. He feels Mr. Ball could give better service to their company than a Logan-based firm because he will be closer. (3) Under a recent reorganization of his company, it has been determined that if they would have someone available, such as Mr. Ball, they would use him more to make their moves and do less of the hauling themselves. (Tr., pp ) The testimony of the three supporting shippers is sufficient to support the conclusion that the Applicant has made a prima facie case that some kind of need exists in Logan, Boone and Lincoln Counties for the authority issued. The Protestants have failed t o meet their burden of proof through sufficient independent public testimony to rebut the

16 supporting shippers' testimony regarding dissatisfaction and inadequacy of the existing hauling service. 3. Fitness is not a specific statutory requirement in West Virginia, but is implicitly required. Mr. Ball's statements in the transcript appear to be truthful and honest, and when coupled with his experience, net worth (Tr. 86, 87) and statements (Tr. p. 96) to the effect that he will file a proper tariff with the Commission and otherwise follow the applicable laws, rules and regulations, support the conclusion of fitness to provide the tendered public service, In observing the demeanor of the Applicant in response to questions on direct and cross examination, the Examiner in his decision did not feel that the Applicant s fitness was an issue which warranted discussion. Further, the Protestants' only concern is with the Examiner's consideration of the Applicant's illegal and unlawful operations as a basis for the issuance of the requested authority. Therefore, the Examiner's Decision will be affirmed. ORDER IT IS, THEREFORE, ORDERED that the Hearing Examiner's Decision in this case is hereby affirmed and adopted as the decision of the Commission in this matter. CH

17 IT IS FURTHER ORDERED, that the Executive Secretary of the Commission shall serve a copy of this order upon Commission Staff by hand delivery and upon all other parties of record by United States First Class Mail. CHAIRMAN o! COMMISSIONER COMMISSIONER WSS/ds OF W E m N l A CH