PENNSYLVANIA PUBLIC UTILITY COMMISSION Harrisburg, PA 17105-3265

Public Meeting held June 22, 2000

Commissioners Present:

John M. Quain, Chairman Robert K. Bloom, Vice Chairman Nora Mead Brownell Aaron Wilson, Jr. Terrance J. Fitzpatrick

Application of L-J-L Trucking, Inc., t/d/b/a A-00112962F0001, Am-A Med-Van Transport, for the right to transport persons in paratransit service, between points in the Borough of Barnsboro, Cambria County, and points within an airline distance of fifty (50) statute miles of the limits of said Borough; subject to the following condition: that the service shall be restricted to trips to and from medical facilities and offices, rehabilitation and physical therapy facilities and offices, and physician, dental and chiropractic facilities and offices

OPINION AND ORDER

BY THE COMMISSION:

Before the Commission for consideration are the Exceptions of Tri County Transportation, Inc. (Tri County) filed on April 17, 2000, to the Initial Decision of Administrative Law Judge (ALJ) James D. Porterfield issued on March 22, 2000, in the above-captioned proceeding. A Motion to Dismiss the Exceptions of Tri County was filed on April 17, 2000 by L-J-L Trucking, Inc., t/d/b/a Med-Van Transport (Applicant). History of the Proceeding

By Application filed on December 26, 1997, the Applicant sought approval for the authority captioned above. After the notice of the Application was published in the Pennsylvania Bulletin, eight (8) timely protests were filed, and the proceeding was referred to the Office of Administrative Law Judge for hearing and disposition.

On August 10, 1998, the Applicant offered the following Restrictive Amendment to the Application:

Provided that no right, power or privilege is granted to transport persons, in paratransit service, between points in the County of Westmoreland, or from points in said County.

The Amendment resulted in the withdrawal of the protests filed by seven (7) of the eight (8) parties. Only the protest of Citizen’s Ambulance Service (Citizen’s) remained.

On March 22, 2000, the ALJ’s Initial Decision was issued wherein the ALJ recommended that the Application be granted. On April 7, 2000, Tri County filed the Exceptions now before us. On April 17, 2000, the Applicant filed a Motion to Dismiss the Exceptions of Tri County. No Reply Exceptions were filed.

2 Discussion

As a preliminary matter, we note that any issue or Exception that we do not specifically address has been duly considered and will be denied without further discussion. It is well settled that we are not required to consider, expressly or at length, each contention or argument raised by the parties. Consolidated Rail Corporation v. Pennsylvania Public Utility Commission, 155 Pa. Commonw. 537, 625 A.2d 741 (1993); also see, generally, University of Pennsylvania v. Pennsylvania Public Utility Commission, 86 Pa. Commonw. 140, 485 A.2d 1217 (1984).

We further note that the ALJ made specific Findings of Fact and Conclusions of Law (I.D., pp. 9-25 and 42-43, respectively). We adopt those herein by reference, unless modified or reversed, expressly or by necessary implication, by this Opinion and Order.

Also, before discussing the Exceptions, we will review the requirements of law regarding the granting of an application to provide service as a common carrier within Pennsylvania. The proponent of a rule or order bears the burden of proof. (66 Pa. C.S. §332(a)). The Pennsylvania Supreme Court has held that the term "burden of proof" means a duty to establish a fact by a preponderance of the evidence. Se-Ling Hosiery v. Margulies, 364 Pa. 45, 70 A.2d 854 (1950). The term "preponderance of the evidence" means that one party has presented evidence that is more convincing, by even the smallest amount, than the evidence presented by the other side. If a party has satisfied its burden of proof, it must then be determined whether the opposing party has submitted evidence of "co-equal" value or weight to refute the first party's evidence. Morrissey v. Commonwealth of Pennsylvania, Department of Highways, 424 Pa. 87, 225 A.2d 895 (1987).

3 Furthermore, any order of this Commission granting an application, in whole or in part, must be based on substantial evidence. Dutchland Tours, Inc. v. Pennsylvania Public Utility Commission, 19 Pa. Commonw. 1, 337 A.2d 922, 925 (1975). The term “substantial evidence” has been defined by the Pennsylvania courts as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. More is required than a mere trace of evidence or a suspicion of the existence of a fact sought to be established. Murphy v. Department of Public Welfare, White Haven Center, 85 Pa. Commonw. 23, 480 A.2d 382, 386 (1994); Erie Resistor Corporation v. Unemployment Compensation Board of Review, 194 Pa. Super. 278, 166 A.2d 96, 97 (1961).

We further note that Section 1101 of the Public Utility Code, 66 Pa. C.S. §1101, states that it shall be lawful to provide service as a public utility only after applying for and obtaining a Certificate of Public Convenience from this Commission. Included in the definition of a “public utility” is any person or corporation transporting persons or property as a common carrier. (66 Pa. C.S. §102). The Public Utility Code further states that:

A certificate of public convenience shall be granted by order of the commission, only if the commission shall find or determine that the granting of such certificate is necessary or proper for the service, accommodation, convenience, or safety of the public.

(66 Pa. C.S. §1103(a), emphasis added).

In applying these requirements to motor carrier applications, we adopted Section 41.14 of our Regulations, which states:

(a) An applicant seeking motor common carrier authority has the burden of demonstrating that approval of the 4 application will serve a useful public purpose, respon- sive to a public demand or need.

(b) An applicant seeking motor common carrier authority has the burden of demonstrating that it possesses the technical and financial ability to provide the proposed service, and, in addition, authority may be withheld if the record demonstrates that the applicant lacks a propensity to operate safely and legally.

(c) The Commission will grant motor carrier authority commensurate with the demonstrated public need unless it is established that the entry of a new carrier into the field would endanger or impair the operations of existing common carriers to such an extent that, on balance, the granting of authority would be contrary to the public interest.

52 Pa. Code §41.14.

We further elaborated upon the proper application of these provisions in Application of Blue Bird Coach Lines, Inc., 72 Pa. PUC 262 (1990) (Blue Bird), wherein we stated:

When, through relevant, competent and credible evidence of record, a motor common carrier applicant has shown that the applicant’s proposed service will satisfy the supporting witnesses’ asserted transportation demand/need, the applicant has sustained its burden of proof under subsection 41.14(a) by establishing that “approval of the application will serve a useful public purpose, responsive to a public demand or need.” e.g., Seaboard Tank Lines, Inc., 93 Pa. Commonwealth Ct. at 613, 502 A.2d at 768; Re Lenzner Coach Lines, Inc., 63 Pa. P.U.C. 217 (1987). See also Morgan Drive Away, Inc. v. Pennsylvania Public Utility Commission (Morgan Drive Away, Inc. II) 16 Pa. Commonwealth Ct. 293, 328 A.2d 194 (1974). This interpretation of subsection 41.14(a) is consonant with our avowed reason for promulgating the transportation regulatory 5 policy statement at 52 Pa. Code §41.14, namely, to eliminate monopolistic protection of existing motor carriers and to promote healthy competition among motor carriers for the purpose of assuring the availability of transportation service commensurate with the demonstrated public demand/need.

(Blue Bird, supra, at p. 274).

We further stated that, based on long-standing Commission and court decisions, the supporting witnesses must identify the Pennsylvania points of origin and destination between which transportation is required. The particular circumstances of a case will determine what constitutes sufficient evidence of a public demand or need regarding the proposed service. The number of witnesses that will constitute a cross- section of the public will necessarily vary with the circumstances of each case, such as the type of service, size of proposed operating territory and the population density therein. The broader the operating authority sought, and the more heavily populated the application territory, the more witnesses will be required to demonstrate public demand or need. The converse is also true. (Blue Bird, supra, pp. 274-275).

In our decision at Re Perry Hassman, 55 Pa. PUC 662 (1982), we stated that fitness consists of three (3) elements: (1) an applicant must have sufficient technical and operating knowledge, staff and facilities to provide the proposed service; (2) an applicant must have sufficient financial ability to provide reliable and safe service; and (3) an applicant must exhibit a propensity to operate safely and legally. With regard to the third item, a lack of fitness is demonstrated by persistent disregard for, flouting or defiance, of the Public Utility Code or the Orders and Regulations of this Commission.

Regarding technical fitness, we stated in our decision at Application of Adgebole Ige, t/a Globe Limousine Service, 75 Pa. PUC 45 (1991) (Globe Limousine):

6 An applicant must have the technical capacity to meet the need for the proposed service in a satisfactory fashion. An applicant must possess sufficient staff and facilities or operating skills to make the proposed service feasible, profitable, and a distinct service to the public.

We shall first address the Applicant’s Motion to Dismiss Exceptions. The Applicant’s Motion is based upon the fact that Tri County initially filed a protest in the instant proceeding on or about February 4, 1998. On May 29, 1998, Tri County filed a withdrawal of its protest. The Applicant contends that Tri County’s withdrawal precludes it from filing Exceptions because, by virtue of Tri County’s withdrawal of its protest, Tri County was no longer a participant in the instant proceeding. (Motion, p. 1).

We agree that Tri County lost its standing to participate as an active party in the instant Proceeding when it filed its Letter of Withdrawal on May 29, 1998, pursuant to 52 Pa. Code §5.94(b). It is well settled that only an active party, who fully intends to participate in the litigation of a case, may conduct discovery, make motions, file briefs, participate in settlement negotiations, and the like. (52 Pa. Code §1.8). Since Tri County has withdrawn from the instant proceeding and is no longer an active party, Tri County cannot now claim that it has a direct and substantial interest in the subject matter. (William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 296 (1975)). We shall, accordingly, grant the Applicant’s Motion to Dismiss the Exceptions filed by Tri County.

We note that, with the grant of the Applicant’s Motion to Dismiss Tri County’s Exceptions, the instant Application is basically uncontested. After careful consideration, we determine that the Applicant has demonstrated an adequate and sufficient public demand for the proposed service. In the contested area of Indiana County, the Applicant has presented the testimony of ten (10) witnesses representing

7 eight (8) healthcare facilities sufficient to establish the requisite demand for the proposed service in the uncontested area. Moreover, following the aforementioned restrictive amendment to the subject Application, seven (7) of the eight (8) Protestants withdrew their protests. Citizen’s, the only remaining Protestant, did not file Exceptions. The restrictive amendment offered on August 10, 1998, states that the Applicant does not seek to transport persons between points in Westmoreland County or to originate trips in Westmoreland County. We agree with the ALJ that the restrictive amendment is reasonable, under the circumstances, and does not impair the overall usefulness of the service to the public. (I.D. p. 27).

Regarding the Applicant’s fitness, as the ALJ determined (I.D., pp. 38-39), the Applicant is presumed to be fit as an existing common carrier pursuant to our decisions at Blue Bird, supra, at 285, and Re V.I.P. Travel Service, Inc., 56 Pa. PUC 625 (1982). Our review of the record in this proceeding reveals nothing that rebuts that presumption. Specifically, we note that the Applicant has had operating authority to provide paratransit authority since June 1996. For the year ending December 31, 1998, the Applicant generated substantial operating revenues and owned substantial assets. (I.D., p. 38). We agree with the ALJ that the longevity and apparent profitability of the Applicant’s operations lead to the conclusion that the Applicant is technically and financially fit to provide the proposed service. Accordingly, we determine that the Applicant has met its burden of establishing its fitness to provide the proposed service.

Regarding whether granting the Application will endanger the operations of existing common carriers to such an extent that, on balance, it would be contrary to the public interest (52 Pa. Code §41.14(c)), we concur with the ALJ’s determination that Section 41.14(c) places a heavy burden on a protestant. The record in this proceeding contains no evidence that granting this Application would harm existing carriers to such an extent so as to be detrimental to the public interest. We note that Citizen’s, the only 8 Protestant that did not withdraw from this proceeding, has experienced an increase in earned surplus in each year since its inception. (I.D., p. 40).

Conclusion

Consistent with our discussion above, we determine that the Application, which is basically uncontested, should be approved; THEREFORE,

IT IS ORDERED:

1. That the Motion of L-J-L Trucking, Inc., t/d/b/a Med Van Transport, filed on April 17, 2000, to Dismiss the Exceptions of Tri County Transportation, Inc. is granted, consistent with this Opinion and Order.

2. That the Initial Decision of Administrative Law Judge James D. Porterfield issued on March 22, 2000, is adopted, consistent with this Opinion and Order.

3. That the Application of L-J-L Trucking, Inc., t/d/b/a Med-Van Transport, filed on December 26, 1997, is hereby approved and that the Certificate of Public Convenience issued to the Applicant, on October 9, 1996, under the Order of the Commission entered on June 11, 1996, at Docket No. A-00112962, be amended to include the following rights:

To transport, as a common carrier by motor vehicle, persons in paratransit service between points in the Borough of Barnesboro, Cambria County, and points within an airline distance of fifty (50) statute miles of the limits of said Borough,

subject to the following conditions: 9 (1) that the service shall be restricted to trips to and from medical facilities and offices, rehabilitation and physical therapy facilities and offices, and physician, dental and chiropractic facilities and offices; and

(2) that no right, power or privilege is granted to transport persons in paratransit service between points in the County of Westmoreland, or from points in said County; and subject, further, to the following restrictions:

(a) that the service herein authorized is limited to transportation in vehicles not equipped with taxi meters or dome lights and having a seating capacity of not more than fifteen (15) persons, including the driver;

(b) that the service herein authorized is limited to transportation in vehicles not reserved for individual use, for which advanced reservations are made not later than the previous calendar day or made in accord with minimum advance times specified by tariff;

(c) that no right, power or privilege is granted to provide scheduled route service as described in sections 29.301– 29.305 of Title 52 of the Pennsylvania Code;

(d) that no right, power or privilege is granted to provide call or demand service as described in sections 29.311–29.316 of Title 52 of the Pennsylvania Code;

(e) that no right, power or privilege is granted to provide group and party service as described in sections 29.321– 29.324 of Title 52 of the Pennsylvania Code; and 10 (f) that no right, power or privilege is granted to provide limousine service or airport transfer service as those services are described in sections 29.331–29.334 and sections 29.341–29.343, respec- tively, of Title 52 of the Pennsylvania Code.

4. That L-J-L Trucking, Inc., t/d/b/a Med-Van Transport, shall not engage in any transportation granted herein until the Applicant shall have complied with the requirements of the Pennsylvania Public Utility Code and the Rules and Regulations of this Commission relative to the filing and acceptance of a tariff establishing just and reasonable rates.

5. That L-J-L Trucking, Inc., t/d/b/a Med-Van Transport shall not engage in any transportation granted herein until it shall have paid all outstanding Public Utility Commission assessments and/or fines due.

6. That the certificate holder shall comply with all the provisions of the Public Utility Code as now existing or as may be hereafter amended, and with all applicable Regulations of this Commission now in effect, or as may hereafter be prescribed by the Commission. Failure to comply shall be sufficient cause to suspend, revoke or rescind the rights and privileges conferred by the Certificate.

7. That the authority granted herein, to the extent that it duplicates authority now held by, or subsequently granted to, the Applicant, shall not be construed as conferring more than one operating right.

8. That, in the event L-J-L Trucking, Inc., t/d/b/a Med-Van Transport, has not, on or before sixty (60) days from the entry date of this Opinion and

11 Order, complied with the requirements set forth herein, the Application shall be dismissed without further proceedings.

BY THE COMMISSION,

James J. McNulty Secretary

(SEAL) ORDER ADOPTED: June 22, 2000

ORDER ENTERED:

12