PUBLIC SERVICE COMMISSION OF WEST VIRGINIA CHARLESTON

Transcription

1 '.- M.C. CASE NO C Entered: December 31, 1985 RONALD L. JENKINS, doing business as JENKINS 24-HOUR WRECKER SERVICE, Farmington, Marion County. Application for a certificate to operate as a common carrier. OF WEST VIRGINIA CHARLESTON HEARING EXAMINER'S DECISION PROCEDURE On September 18, 1985, Ronald L. Jenkins, doing business as Jenkins 24-Hour Wrecker Service, Farmington, Marion County, filed an applicatior for a certificate of convenience and necessity to operate as a commor carrier by motor vehicle in the transportation of-- wrecked and/or disabled motor vehicles within five (5) nautical miles of Farmington, Mannington, Fairview, Metz, Four States, Worthington and Monongah, Marion County, on the one hand and points and places in West Virginia on the other hand. All trips will begin or end in the above localities. By Order dated September 18, 1985, the Applicant was required to give notice of the filing of said application by publishing a copy of saic Order once in a newspaper, duly qualified by the Secretary of State, published and of general circulation in Marion County. Proper notice was given, as required, and letters of protests were received. By Order dated October 4, 1985, this matter was set for a hearing tc be held in Room 222, Harrison County Correctional Center, Clarksburg, or November 12, h OF WEST VIRGINIA

2 By subsequent Order, this matter was continued and by Order of November 14, 1985, it was reset for a hearing to be held in Room 222, Harrison County Correctional Center, Clarksburg, on November 22, The hearing was held as scheduled. The Applicant appeared in person and by Counsel, Mr. Harry R. Cronin, Jr., Esquire. The Protestant, Rush's Wrecker Service, appeared in person and by Counsel, Mr. James L. Watkins, Jr., Esquire. Prior to the receipt of evidence, the Applicant amended his application to substitute the word "air miles" for the word "nautical miles" in the authority being sought. EVIDENCE PRESENTED Mr. Ronald L. Jenkins, the Applicant, was first to give testimony in support of his application. He has operated an auto repair shop in Farmington for three years and stated that there currently is no wrecker in Farmington, the closest being in Fairview, which is a six mile distance. He is making this application because it takes approximately one to one and one-half hours for a wrecker to respond to the Farmington area, therefore, he feels there is a great need for another authority to operate in his area. He has only had a personal need of wrecker service through his business. Mr. Jenkins further testified that if granted this authority, he could get a loan from the First National Bank of Fairmont with which to buy equipment and he has a net worth of approximately $30,000. If the authority is granted, it would be operated on a 24-hour, seven day- a-week basis. He has currently a full-time mechanic that has had experience driving 18-wheel trucks but not tow trucks. He has no one in his employee that has experience in working wrecks or tow trucks. If 'I OF WEST VIRGINIA -2-

3 he is successful in receiving this authority, it is his intention to purchase a one and one-half ton truck fitted with a 1,200 Holmes unit with a wheel lift, which is a medium-sized wrecker. It would have the capacity to haul a beer truck. His repair shop in Farmington would be the base for his operation where he has two buildings, both with two stall garages. In the beginning, he will go out on calls himself and he currently employs two others in his present business, none of which have any wrecker experience. Mr. Jenkins further explained that Mannington is approximately four miles from Farmington. Metz is seven or eight miles from Farmington. Four States is about four miles away and Worthington is two or three miles from Farmington. Basically, the authority being sought would cover the eastern half of Marion County. Mr. Jenkins explained that when he receives a call at his business for repair service, he generally goes to the disabled vehicle to see if it can be repaired at the site ant only resorts to towing if it must be brought back to the shop for repairs. If towing must be done, he leaves the arrangements for securing a to% truck up to the individual. In the operation of his 24-hour business, after his shop closes, he would use an answering machine to give a number and name to call for service. He pointed out that in the past month, hc has had two situations of auto repairs that have required these servicee of a wrecker. (Tr., pp. 5-28). The next witness was Mrs. LuRita Rani Jenkins, the wife of thr Applicant. She testified briefly that she helps her husband with thr business by keeping the books and answering the telephone. She further explained that the Applicant's mother lives beside the garage and would bc available to answer the telephone if all others were out. In such a case, OF WEST VIRGINIA -3- D

4 she would have someone at the garage to answer the call. (Tr., pp ). Mr. Thomas Michael Sherry has owned and operated Sherry's Exxon or Route 250 near Farmington for two years. In the conducting of his business, he has had need for wrecker service, particularly in the wintertime when cars are in ditches along the Ida May Hill. In these situations, he never makes the call, himself, for the wrecker but has the party call fron his station. He told of one instance during a particularly heavy snob period when a person calling from his station had to wait three hours for a wrecker to respond. Other than during the wintertime, he was not awarc of any long delays experienced in getting wreckers. From his experience, he feels that there is a need for more authority in the area, particularlj during the peak season but the service available is okay in the summertime. Because he is primarily involved with doing light road work, using his own pickup, he does not have as much business towed into his station, He has no personal need for a wrecker. (Tr., pp ). Also appearing to testify on behalf of the Applicant was Mr. Robert Miller, who identified himself as being involved with Cook Auto Sales ir Mannington. Cook Auto Sales has a service station in its used car lot an< in conjunction with that, they have some calls for people needing wreckei service to be towed to a garage. In his area, he is familiar with the services being provided by Mr. Tally Longstrith of Mannington and that ht only operates during business hours and provides no services on weekends If one of his customers needs a wrecker, he lets them make the contact an( really has not paid much attention as to whether there have been delays ir response time, therefore, he could not give testimony about such delays ir receiving service. If he has a personal need for a wrecker in conjunctioi OF WEST VIRGINIA -4-

5 OF WEST VIRGINIA -5- m with his business, he usually resorts to using a chain for moving around his business. (Tr., pp ). Mr. Daniel Saparito runs a pizza shop and has been a volunteer fireman for six years in Farmington. He told of there being a need two ox three times a month for a wrecker to be called out when the fire department answers a call. He related that in a recent accident, they had to use their portable "j.aws of life" to get a victim out of a car, where if they had a wrecker available, the car could have been moved providing easier access to the victim, although the normal practice is to use the "jaws of life" to extricate victims rather than a wrecker. He indicated that on another stretch of road located 3 1/2 to 4 miles from Farmington, there have been a number of accidents in response to which Mr. Rush fron Fairview or Mr. Haymond from Fairmont are normally called, which sometimes result in waits of up to one-half hour. He personally thinks there is 6 need for a wrecker in the Town. In the six years that he has been involved with the Volunteer Fire Department, he could only think of twc incidences where a possible delay of a wrecker has been life threatening. He pointed out in further testimony that his knowledge is limited only tc the Farmington area and not to the other area sought in this application. He did not know that there had been any time when Mr. Rush had been callec when there had been an unreasonable delay. (Tr., pp ). Mr. Charles Sokolosky works for Thomas Haulaways, a garbage business. He told of his personal experience wherein he recently had an accident at Metz and had to have his car towed to Fairmont. Ke pointed out that it would have been cheaper if his car could have been towed from Farmington. This has been the only need that he has had for a wrecker recently. Thr one time that he had need for a wrecker truck when his garbage truck brokc

6 down, it occurred before 5:OO p.m. so he could call and talked to Mr, Tally Longstrith of Fairview. (Tr., pp ). The final witness to appear on behalf of the Applicant was Mr. NicE Vengino, who stated that he works for the Applicant as a mechanic an< truck operator. Having had ten years experience as a truck driver, ht expects to be-the driver for the Applicant if this authority is granted. He related that he personally has needed a wrecker three months befort when his car broke down in Mannington. At that time, he called the Hari Brothers of Fairmont because Tally Longstrith in Mannington would not comt out. It took Harr Brothers 45 minutes to respond. He also testified thal he has had no problem with having Haymond's or Harr Brothers responding tc calls at Four States except that they are so far from Fairmont. Because of this, he feels that there is a need for another wrecker in the area especially after 5:OO p.m. (Tr., pp ). With the testimony of Mr. Vengino, the Applicant rested its cast whereupon testimony was taken from several parties who appeared in protesl to this application. The first of the parties to appear to give testimony in protest wa: Mr. Ralph G. Haymond, who is the certificated operator of Haymond'! Wrecker Service in Fairmont, and has authority for Marion County ant vicinity with occasional trips to points and places in West Virginia. Hc has been in operation for fourteen years and he pointed out that hi: authority allows him to make trips to the areas being sought by thii application and he, in fact, responds to calls in these areas. Currently he has eight trucks able to handle from the smallest to large vehicles Besides himself, he has three full-time employees with four people beinl at the business at all times. Besides the eight trucks, he also has ai OF WEST VIRGINIA -6-

7 extra vehicle licensed and available if needed. Mr. Haymond pointed out that he might get approximately 20 calls a month from the area covered by this application to which his response time would be 30 to 45 minutes at most. He does not get many calls from the Fairview area because of overlapping with the service of Mr. Rush and receives very few from the Metz area. Most of the delays that he has experienced recently have been caused principally by the weather. He is principally a wrecker service and only does such things as road service, if he has time. Mr. Haymond stated that he seldom has all of his eight trucks busy at the same time. He pointed out that the only service operating legally within the city limits of Fairmont currently is Harr Brothers. Fihile he was not sure of the effect that another business would have in the area, he did state that if he lost many calls, he possibly would have to lay off a driver. Since some of his equipment is currently sitting idle, he does not feel that there is need for more authority. Last year, he made a slight profit and is doing about the same during this year. He concluded his statement by indicating that his day-to-day business principally comes from the Fairmont and Monongah areas, down Route 19 frequently. He believes that within this four to six mile area, his response time is as good as that of the Applicant because he is only a towing business, so his drivers are ready to respond instantly. (Tr., pp ). The second witness to give testimony in protest was Mr. Gary Harr, who is another certificated operator, operating Harr Brothers, Inc., which does business as East Side Garage in Fairmont. They have been in business eight years and have seven wreckers and one service truck, all of whicf are radio-equipped. The authority that they presently have provides for an unlimited number of trucks. He and his wife are the Company's OF WEST VIRGINIA -7-

8 OF WEST VIRGINIA -8- m full-time employees, plus two others, and they have three part-time persons that are on call when needed. While his Company does provide service to the areas of the application on an infrequent basis, he does not do enough day-to-day business in that area so he feels that the introduction of another authority would hurt a lot. In five months, he pointed out that they have only had 33 calls from this area. His Company did make a profit last year, however, there has been a drop off in business since that time requiring a tightening up of operations that has resulted in an employee of 7 lj2 years quitting because he could not receive a raise. One of his idle trucks was sold but he kept the boom, which would be available to be mounted on another truck, if needed in the future. Besides operating as a wrecker service, Harr Brothers also does auto and truck repair. He explained that all of his Company's money is invested in the wrecker service, but the garage and road repair service is keeping them going. They have three phone lines with which customers can make a call. (Tr., pp ). Mr. John M. Rush testified in protest as another certificated operator, operating as Rush's Wrecker Service and Fairview Auto. His business is located on Route 218 between Fairview and Farmington. He received his authority in 1984 and is, by it, limited to two vehicles within a radius of eight miles of Fairview, which includes the area of this application. In acquiring his rights, he had to pay $20,000 which included the purchase of two trucks besides the authority. He explained that his wife anc father helped him in the conduct of the business, plus two other men that he hires in the wintertime. In 1985, he had approximately 170 wrecker calls, most of the calls come during the months of January and February, durin-g the bad snow, while during the months of April and June, he might

9 have only eight to nine calls per month. In the Farmington-Fairview area, he only had five calls in the last 1 1/2 years. He has never had any calls from the Metz, Four States or Worthington areas. Mannington is the furtherest of the areas sought by this application from his authority with a response time of 25 minutes, however, he has only had four to five calls in Mannington. Mr. Rush further pointed out that besides the $350 a month payment that he is making on his rights, he also must pay $125 for his mortgage and $2,200 for insurance per year. In 1985, he explained that he had a loss of $6,000. With this background, he stated that he felt that the granting of the authority would take away about one-third of his calls per month as he relies upon all of the areas of this application ir getting his business started. He uses the garage that he has for storage and does not do repairs but salvages cars and sells parts from them. He presently does not have a salvage yard license nor operates such a yard. (Tr., pp ). The final party to appear in protest to this application was Mr. John A. Keefover, who owns and has operated Grant Town Garage and Auto Repair for 3 1/2 years. His business does all sorts of work on automobiles ir conjunction with which he uses a wrecker two to three times a month. Wher he needs a wrecker, he will normally use the service that is closest. Ir Fairmont, this would be Haymond's or Harr's and in Fairview or Grant Town, he uses Rush's. He explained that in his calls that he has made, he has never been dissatisfied with the service received or found the response time to be unreasonable. He has never called for a wrecker that one dic not arrive. From his experience, he did not see the need for any additional service within the areas being sought. (Tr., pp ). OF WEST VIRGINIA.9-

10 With the testimony of Mr. Keefover, no further evidence was taken i regards to this matter and it was submitted to the Commission for decision. DISCUSSION OF APPLICABLE LAW BURDEN OF PROOF It is well-established in this state that one applying for a commc carrier certificate over a defined territory must establish to the satis faction of the commission that public convenience and necessity requir the proposed service. Weirton Ice and Coal Supply Company v. Publj Service Commission, 240 S.E.2d 686, (1977) and West Virginia Code The commission has interpreted this requirement to mean that tl applicant must demonstrate that he or she has the financial abilitj experience and fitness to provide a needed, useful, and responsive publj service, as well as the public convenience and necessity require t f proposed service. Ford Brothers, Inc., M.C. Case No , April The applicant must produce public witnesses who are able to testij that the proposed service is needed in the area of application. Harle: Excavating Company, Inc., M.C. Case No , April 23, If te evidence of record in the case reveals that there is some kind of need j the proposed area of application, the applicant has established a prir facie case that public convenience and necessity require the propost service and that the service furnished by existing transportation facil ities is not reasonably efficient and adequate. Ford Brothers, supr: The applicant is not required to demonstrate by positive proof that tl service furnished by existing facilities is not reasonably adequate ar efficient.,additionally, along with the testimony of public witnessei OF WEST VIRGINIA -10-

11 factors such as desirability of additional competition and the enhancement of the company's ability to provide 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, 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 then 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 establish 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 Protestants as to the adequacy and effi- ciency of their concerns in meeting demands. (Id. -). Thus, in order to meet their burden of proof as to an application for a certificate of convenience and necessity, the Protestants must present witnesses other than themselves before the Commission will deny an application based upon their presentation. OF WEST VIRGINIA -11-

12 FINDINGS OF FACT 1. The Applicant seeks by this application 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 five (5) nautical miles of Fairmont, Mannington, Fairview, Metz, Four States, Worthington and Monongah, Marion County, on the one hand, and points and places in West Virginia on the other hand. 2. At the hearing, the Applicant amended his application to change the five (5) nautical mile referenced in the application to be five (5) air miles instead. 3. The evidence presented on behalf of the Applicant to support this application consisted of testimony by himself and six (6) public witnesses. The public witnesses, Thomas Sherry, Robert Miller, Daniel Saparito, Charles Sokolosy and Nick Vengino, testified basically of the fact that because of Farmington's location from Fairmont, there is some delay in securing wrecker service because of the distance that must be traveled. 4. These witnesses did not testify as to any needs that had arisen in the recent past wherein a wrecker was needed and could not be securec from one of the certificated wreckers located in and serving this general area. 5. The Protestants, Messrs. Ralph Haymond, Gary Harr, and John M. Rush, all certificated wrecker operators with authority to serve this part of Marion County and their testimony was that they have the equipment available to provide more service than is currently available. OF WEST VIRGINIA m -12-

13 DISCUSSION This application for a certificate of convenience and necessity seeks operations as a wrecker operator in Marion County, West Virginia. The Applicant made a statement in his own behalf in support of his application and presented the evidence of six (6) public witnesses. These public witnesses, although giving evidence of some past delays in securing wrecker service, did not show a persistent pattern within the County of a need for wrecker service that is not being met by the several certificated wrecker operators that presently have authority to operate within this area. Failing to make this showing that there exists some need in the proposed area of application, the Applicant has failed to establish a prima facie case that the public convenience and necessity requires the proposed service and that the service furnished by existing transportation facilities is not reasonably efficient and adequate, therefore, the application must be denied for failure of the Applicant to meet his required burden of proof. CONCLUSION OF LAW The Hearing Examiner is of the opinion and finds that: Since the Applicant has failed to meet his required burden of proof, as set forth herein, this application must be denied. ORDER IT IS, THEREFORE, ORDERED that the application of Ronald L. Jenkins, doing business as Jenkins 24-Hour Service, Farmington, Marion County, for a certificate of convenience and necessity to operate as a common carrier OF WEST VIRGINIA

14 by motor vehicle in the transportation of wrecked and/or disabled motor vehicles, be, and the same 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 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. RWG: jas OF WEST VIRGINIA -14-