PUBLIC SERVICE COMMISSION ul. h OF WEST VIRGINIA. CHARLESTON Entered: September 11, 1984

Transcription

1 M.C. CASE NO C.C&[*T 5' v r, ul. h CHARLESTON Entered: September 11, 1984 WALLY REED'S ESSO, INC., a corporation, Morgantown, Monongalia County. Application for a certificate to operate as a common carrier. HEARING EXAMINER'S DECISION PROCEDURE On February 10, 1984, Wally Reed's ESSO, Inc., a corporation, Morgan- town, Monongalia County, filed an application for a certificate of conve- nience and necessity to operate as a common carrier by motor vehicle in the transportation of-- wrecked and/or disabled motor vehicles within and between points and places in Monongalia County with occasional trips to adjoining areas. All trips to begin or end in Monongalia County. 11 Rates to be charged: II 1. Hourly Rates Rate Per Hour Minimum Automobiles (Passenger Cars) and Trucks one ton or less $21.00 $21.00 ll I /I $ Trucks one and one-half to three tons $34.00 $34.00 Trucks and buses (over three ton) $45.00 $45.00 Tractor and trailer combinations (Requiring heavy duty wrecker) $50.00 Vehicles - grossing 50,000 pounds and up $50.00 $ Mileage Rules Instead of the hourly rates shown above, the carrier may charge a mileage rate of $1.45 per mile, calculated from the carrier's base of operation to the final towing destination. In no case shall both an hourly charge and PUBLIC SERVICE COMMlSSlON

2 r a mileage charge be applied. 3. Additional Labor The rates shown herein include the services of one man (the driver). If additional labor is required, such additional labor shall be provided by the carrier at the rate of $9.00 per hour per helper. The minimum charge or such labor shall be $9.00 per helper. 4. Additional Charge for Sundays, Evenings and Holidays Due to overtime wages paid on Sundays, Evenings (6:OO p.m. to 6:OO a.m.> and Holidays (New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day), an additional charge of $4.50 per hour shall be added to all charges provided in paragraphs (1) and (3) above, when said services are performed on Sundays, Evenings and Holidays. 5. Storage Whenever vehicles are towed by a carrier to the carrier's place of business, storage shall be provided as follows: Per Day Automobiles (Passenger Cars) and trucks one ton or less $3.00 Trucks one and one-half to three tons $4.00 Trucks over three tons $5.00 Semi-trailers and buses $7.00 By order entered on February 10, 1984, the Applicant was ordered to give notice of the filing of the application by publishing notice of the application once in a newspaper, published and of general circulation in Monongalia County, making due return thereof to the Commission of proper certification within ten (10) days of such publication. Anyone desiring to make objection to the application was given leave to do so, in writing, within ten (10) days after the publication of said notice. The written objection was to request a hearing, if a hearing was desired, and the protestant would be required to appear at the hearing and show cause, if - -2-

3 any it could, why the application should not be approved. The order went on to state that if no protests were received, the Commission could grant the request without a hearing. On February 29, 1984, the Commission received the publisher's certificate from the publisher of The Dominion Post, a newspaper of general circulation published in the City of Morgantown, Monongalia County, West Virginia, which certified that the aforesaid notice had been published in that newspaper on February 18, Protests to the application were received. By order entered on March 7, 1984, this matter was set for hearing to be held in the County Commissioners' Court Room, 2nd Floor, Monongalia County Court House, Morgantown, West Virginia, on April 12, 1984, at 9:30 a.m. Proper notice was given and the hearing was held on April 12, 1984, as previously scheduled. Wallace M. Reed appeared on behalf of the Applicant, Wally Reed's ESSO, Inc., and was represented by Brooks E. Smith, Esquire. The Protestants, Darrell M. Summers, doing business as Summers Service Station; George Laishley, doing business as Laishley Exxon, Lewis Ervin, doing business as Ervin's Towing; David A. Black, doing business as Black's Auto Repair; Vic's Garage, Inc.; Buster Rowan, doing business as Buster's Auto Wrecking; William H. Bland, doing business as Bland's Auto Wrecking; and Ralph W. Phillips, doing business as Ralph's Used Cars and Towing Service, were represented by Ward D. Stone, Jr., Esquire. W O N m -3-

4 EVIDENCE The following witnesses testified on behalf of the Applicant. Paul Selby, Jr., a Professor at the West Virginia University School of Law has done business with Wally Reed's Esso since (Tr., p. 9). He has been fully satisfied with the service rendered by Wally Reed's Esso with respect to everything from towing to mechanical service. (Tr., pp. 12, 13). Regarding the service of other common carriers in the area, Mr. Selby used the services of Summers Service Station and found them to be unsatisfactory. This was basically due to the fact that approximately nine or ten years ago a car he owned was towed to Summers Service Station and valuable items were subsequently found missing. (Tr., pp ). Stephen Mitchell, Manager of the U-Haul Center in Bridgeport, West Virginia. On any given day, U-Haul has approximately 400 trucks and 800 trailers traveling through West Virginia. (Tr., p. 21). In fact, approximately three years ago U-Haul conducted a two-day road count on Interstate 79 near Clarksburg and counted over 120 of its trucks and 200 trailers during that period. (Tr., pp ). Mr. Mitchell is of the opinion that his business is in dire need of a wrecker service in Monongalia County. (Tr., p. 22). The main reason that he would like the services of Mr. Reed is because Mr. Reed is a U-Haul dealer and as such, he can transfer the load from a disabled U-Haul vehicle to one that is operable, unlike other wrecker services, thus saving time, money, and convenience. (Tr., p. 25). Also, there is an element of control that does not exist in wrecker operators who are not U-Haul dealers. For an example, if Mr. Mitchell has a dispute with a U-Haul dealer, this can be resolved more quickly and efficiently than if the party was not a U-Haul dealer. (Tr., pp. 28, 31). Regarding other -ll-

5 common carriers, approximately seven or eight years ago, Mr. Mitchell use< the services of Vic Solomon and William Bland and found them to bc unsatisfactory. (Tr., pp , 55). On cross-examination, Mr. Mitchell stated that Wally Reed has author- ity from the U-Haul Company to tow and conduct road services on U-HauZ vehicles. (Tr., p. 36). The main problem that Mr. Mitchell has experi- enced with other wrecker operators is the lack of 24-hour road and towing services. (Tr., p. 38). Although another wrecker service, Westovei Exxon, Inc., is a U-Haul dealer which could provide wrecker and repaii service 24 hours a day, Mr. Mitchell prefers not to deal with that Compan: because Wally Reed Esso has more experience and he personally knows tht mechanics. (Tr., pp ). However, if Wally Reed were given i certificate of necessity, it would be necessary for him to purchase large] wreckers in which to tow some of Mr. Mitchell's larger U-Haul vehicles (Tr., p. 45). These large U-Haul vehicles account for approximately 25: of the wrecker service that Mr. Mitchell requires. (Tr., p. 58) Presently, Mr. Reed can adequately tow the remaining 75% of the U-Hau: vehicles in the daytime. However, he does not offer 24-hour servict because of the lack of busines due to the fact he has no common carriei authority. (Tr., pp. 40, 60-61). Mr. Mitchell stated that Lewis Ervin did a good job of towing for hi1 in the past. (Tr., p. 46). Due to the fact that he is no longer a U-Hau: dealer, though, he could not transfer loads from a disabled U-Haul vehiclc to one that is operable, unlike Mr. Reed. (Tr., p. 48). - Presently, Wally Reed provides almost all the road service thai U-Haul requires during the day. (Tr., p. 63). However, Arch Reed, Wall: Reed's son who is the owner of Westover Exxon, performs minor maintenancc -5 -

6 on U-Haul vehicles. Mr. Mitchell has not discussed with him the possibility of a major service contract which would allow Arch Reed to perform repair work. (Tr., p. 65). The Rev. Henry K. Brown, Pastor at St. Paul's Lutheran Church in Morgantown, West Virginia, has dealt with Wally Reed's Esso and has found its service to be excellent. (Tr., pp ). However, he went on to state that he had not had any trouble or problems whatsoever with any other wrecker service in Monongalia County. (Tr., p. 72). Russell Lillard, President of Superior Industrial Laundries, Inc., is in charge of 11 vehicles. (Tr., p. 75). The main reason he would like to deal with Wally Reed's Esso is because he has done business with it in the past, it is conveniently located, and Mr. Reed allows him to operate on credit. Mr. Lillard admitted, however, that there are other wrecker services in the same general area of which he is not aware. (Tr., pp. 77, 80, 84, 85). Eugene Sanders is President of a floor covering and furniture business in Morgantown, West Virginia. With respect to this business, Mr. Sanders operates nine (9) vehicles. (Tr., p. 87). In the past, Mr. Sanders has used Wilson Chevrolet for repairs, and has also found the services of Summers Service Station to be adequate. (Tr., pp. 88, 89, 92). He prefers to deal with Wally Reed because of the convenience and promptness of his service. (Tr., p. 91). Robert S. Dunbar, retired Professor of Animal Science at West Virginia University, prefers to deal with Wally Reed because he knows hirr personally, has confidence in him, and likes the combination of wrecker and repair service that Mr. Reed offers. (Tr., p. 100). - - m -6-

7 II 1 The final witness to testify on behalf of the Applicant was Wallace M. Reed, President of Wally Reed's ESSO, Inc. Although Mr. Reed does not charge for wrecker service, he is under contract with the American Auto- mobile Association ("AAA'') wherein he receives $10 per service call and can charge an additional amount if the circumstances dictate. (Tr., pp , ). In 1983, Mr. Reed received approximately 680 such service calls from the AAA office. Approximately 20% of these involved wrecker service wherein Mr. Reed received no compensation. (Tr., p. 111). For the period March 19 through March 31, 1984, Mr. Reed received 15 calls requesting wrecker service which he had to refuse since he does not have the proper authority. (Tr., p. 114). On cross-examination, Mr. Reed admitted that part of the reason he is seeking a certificate to operate as a common carrier is the hope of additional business that will result from his ability to tow vehicles into his shop, the subsequent repair work, and the additional business from people not only in the community but also traveling through the area. (Tr., p. 131). Mr. Reed admitted, however, that there are approximately 10 competing motor carriers located in the Morgantown area. (Tr., p. 135). Finally, Mr. Reed stated his position that it isn't economically feasible to provide 24-hour service to only the U-Haul Company without also having the benefit of business from the general public as an operator in the wrecker business. (Tr., p. 139). Eight Protestants appeared at the hearing to protest the granting of this certificate. All of the Protestants have authority from the Public Service Commission which overlaps the authority sought by Wally Reed's Esso. In fact, evidence was submitted showing that there are approximate- ly 12 wrecker operators who have certificates to operate in Monongalia -3 - I - 1 I]

8 County, at least ten of which are in the Morgantown area. (Tr., pp ). Many of the protestants stated that in recent years the number of calls requesting wrecker service has decreased. (Tr., pp. 181, 187, 193, 202, 203, 212, 213, and 220). [Note, however, Protestants' Ex. No. 2 indicates that Summers Service Station has experienced steadily increasing wrecker calls since Subsequently, most of the protestants were of the opinion that if this certificate were granted, it would have an adverse affect on the existing wrecker services. (Tr., pp. 163, 176). Many of the protestants operate on a seven day, 24-hour basis, have the ability to tow and repair any U-Haul vehicle, and were used in that capacity by Mr. Mitchell in the past. (Tr., pp. 22, 163, 174, 175, 203, and 223). In addition, most of the protestants stated that they were not aware of any part of Monongalia County which did not have adequate towing I service nor were they aware of any specific instances where a person or company was not able to get towing service on a 24-hour basis. (Tr., pp. 164, 176, 183, 189, 204, 214, 215, and 224). As a final note, Mr. Smith, counsel for the Applicant, offered for administrative notice three orders of the Commission involving customer complaints against three of the Protestants: Summers Service Station, Order of August 2, 1976, M.C. Case No. 1161; Bland's Auto Wrecking, Order of August 2, 1976, M.C. Case No. 9977; and Vic's Garage, Inc., Order of March 21, 1983, et al, M.C. Case Nos and (Tr., pp ). The Hearing Examiner declined to take such notice for reasons to be discussed later herein. m -8-

9 -9- m FINDINGS OF FACT The Hearing Examiner is of the opinion and finds that: 1. The Applicant, Wally Reed's ESSO, Inc., has authority from U-Haul to tow and conduct road services on its vehicles, and a contract with AAA to provide road services for its members. 2. Although the Applicant has applied for authority in all of Monongalia County, five of its six supporting witnesses reside in Morgantown and can speak to a need for additional wrecker services only in that city. 3. None of those five Morgantown witnesses testified to a specific instance when wrecker service was needed but was not available. 4. The Applicant's other supporting witness and the only one to testify to a need outside the Morgantown area, Stephen Mitchell, Manager of the U-Haul Center in Bridgeport, West Virginia, would like to utilize the services of the Applicant due mainly to the fact that he is a U-Haul dealer. 5. Another wrecker service, Westover Exxon, Inc., is a U-Haul dealer and could provide wrecker and repair service 24-hours a day, although Mr. Mitchell prefers not to deal with that Company. 6. There are approximately 12 wrecker operators which have authority from the Public Service Cormnission to operate in Monongalia County, at least 10 of which are based in Morgantown. 7. Many of the Protestants operate on a seven day, 24-hour basis and have the ability to tow and repair any U-Haul vehicle. 8. Presently, Wally Reed ESSO, Inc., does not have the equipment tc provide approximately 25% of the wrecker service that U-Haul requires.

10 9. At least four of the Applicant's supporting witnesses testified that they are either satisfied with the services of the existing common carriers or that they had not dealt with nor solicited their services in the past. 10. The Protestants, with the exception of Summer's Service Station, cite declining demand for wrecker service in Monongalia County. DISCUSSION OF APPLICABLE LAW One who applies for a certificate to operate as a common carrier subject to the jurisdiction of the Public Service Commission is required to establish that public convenience and necessity require the proposed service Weirton Ice & Coal Supply Company v. Public Service Commission, 240 S.E.2d (W.Va. 1977); West Virginia Code 524A-2-5. The Commis- sion 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 Excavating Company, - Inc., M.C. Case No , April 23, 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 facie case that public convenience and necessity require the proposed service and that the service furnished by existing transportation facilities is not reasonably efficient and adequate. Ford Brothers, supra. The applicant is not required to demonstrate by positive proof that the service furnished by existing facilities is not reasonably adequate and efficient. -10-

11 Additionally, 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. Talley Well Service, Inc., M.C. Case No , November 20, 1980, 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 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 state- ments of the protestants as to the adequacy and efficiency of their concerns in meeting demands. (Id.). - Applying the above law to the foregoing discussion of the evidence, the Hearing Examiner is of the opinion and finds that the Applicant, Wally Reed's ESSO, Inc., has not made a prima facie showing that the public convenience and necessity require its proposed service. While the Applicant applied for authority in all of Monongalia County, five of its II =mo" m

12 six supporting witnesses testified to their desire for the additional wrecker service solely in the City of Morgantown. Such evidence will not support a grant of the sought-after authority throughout the entire county. Larry's Mobile Homes, Inc., M.C. Case No C (May 21, 1984). Furthermore, none of the aforesaid witnesses spoke to a specific occasior when wrecker service was requested but was not available or was inadequately provided. Quality Builders, M.C. Case No , (1978). The missing property of which Professor Selby testified was an isolatec incident occurring nine or ten years ago, after service had been rendered, and is therefore not credible evidence of a present public need. The Applicant's other supporting witness, Stephen Mitchell, Manager of the U-Haul Center in Bridgeport, testified to his desire to use the Applicant's services within all of Monongalia County because the Applicant is a U-Haul dealer. However, another wrecker service, Westover Exxon, Inc., is a U-Haul dealer and could provide the wrecker and repair service that Mr. Mitchell requires 24-hours a day. Moreover, Mr. Mitchell prefers not to use the wrecker services of Westover Exxon, Inc., not because of the inadequacy of that service, but based upon his past relationship wit1 Wally Reed's Esso and his preference to use that company's services. Additionally, there are several other common carriers in Monongalia Count4 that operate on a seven day, 24-hour basis and have the ability to tow anc repair U-Haul vehicles. [In fact, Rule 6.08 of the Commission's Rules anc Regulations for the Government of Motor Carriers of Passengers anc Property requires that unless expressly waived by the Commission, wrecker service be provided 24 hours per day, seven days per week]. It may be summarized that of the six supporting witnesses that testified on behalf of the Applicant, four were either satisfied with thc -In -1L-

13 -13- rn services of existing common carriers or had not dealt with nor solicited their services in the past, one had not dealt with a protesting carrier within the last 10 years, and one (U-Haul) prefers to deal with Wally Reed due to personal preference, although there are other common carriers that could provide the desired services. While the Applicant has not met its burden, ana the certificate must be denied, it is the opinion of the Hearing Examiner that the protesting carriers did not present evidence, through the use of independent witnes- ses, sufficient to estop the certificate grant in the face of a prima facie showing of public need. A word should be said with regard to the Hearing Examiner's decision not to take administrative notice of prior Commission cases involving customer complaints against three of the Protestants. A similar issue was before the Commission in Jesse D. Covey, M.C. Case No (February 22, 1984). In that case, the Hearing Examiner refused to consider evidence from previous Commission disciplinary proceedings on the issue of the Applicant's fitness because appropriate sanctions had already been imposed by the Commission. The Hearing Examiner believed that consideration of such evidence would amount to an additional sanction for the same acts. The Commission affirmed the Hearing Examiner's decision and stated: "The penalty for these prior violations have been imposed by the Commission, and reliance on this evidence to deny additional authority violates the principle of res judicata and creates the risk of double jeopardy. This is particularly true when the Commission has previously determined that these acts did not warrant revocation of the Applicant's existing operating authority." (at Page 5). Although that case dealt with an applicant's previous violation of the Commission's Rules and Regulations, the reasoning behind that decision is likewise applicable to the cited complaints previously brought against

14 three of the Protestants herein. Those complaints have been litigated, the proper sanctions applied, and those defendants are before the Commission in this proceeding with full standing to protest the sought-after authority. Furthermore, those complaint proceedings and the evidence therein presented cannot properly be considered evidence of a public need, through the taking of administrative notice, due to the obviously associated problem of providing due process. Finally, it should be noted that two of the complaints were filed over eight years ago and that there are five other Protestants who were not defendants in those proceedings. Although the sought-after certificate shall be denied, it should be said that the specialized services required by U-Haul may be rendered under a contract carrier permit if it can be shown that the services of existing common carriers are inadequate to meet the specialized needs of U-Haul. Roger Ball, dba Ball's Trucking and Backhoe Service, et al, M.C. Case No (July 14, 1981). In the case of Wayne Bayliss, M.C. Case No (December 2, 1982), the Commission determined that the Applicant had met this burden of proof when it was shown that there existed a need by the shipper, Monsanto, for the hauling and stockpiling of coal that was not and could not be fulfilled by the protesting common carriers. CONCLUSIONS OF LAW The Hearing Examiner is of the opinion and finds that: 1. Wally Reed's ESSO, Inc., has failed to establish a prima facie case that the public convenience and necessity require its proposed services in Monongalia County. -14

15 2. The application of Wally Reed's ESSO, Inc., for a certificate of public convenience and necessity should therefore be denied. 3. It is contrary to the principles of res judicata and due process to take administrative notice in this proceeding of previous complaint cases and evidence submitted in those proceedings. ORDER IT IS, THEREFORE, ORDERED that the application of Wally Reed's ESSO, Inc., a corporation, Morgantown, Monongalia County, for a certificate of public convenience and necessity to operate as a common carrier by motor vehicle 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 I of the Commission, nor shall any such waiver operate to make any Hearing m m -15-

16 Examiner's Order or Decision the order of the Commission sooner than five (5) days after approval of such waiver by the Commission. CDP :mal Charles D. Perf#er Hearing Examiner CHARLESTON -16-