OF WEST VIRGINIA PROCEDURE

Transcription

1 i OF WEST VIRGINIA CHARLESTON I I Entered: July 26, 1985 M.C. CASE NO AC WALLY REED'S ESSO, INC., a corporation, Morgantown, Monongalia County. Application for an amendment of certificate. HEARING EXAMINER'S DECISION PROCEDURE On June 3, 1985, Wally Reed's ESSO, Inc., a corporation, Morgan- town, Monongalia County, filed an application to amend P.S.C. M.C. Certif- icate No. F-6171, as follows: to authorize the movement of the base of operations to 824 Monongahela Boulevard, Morgantown, West Virginia, for the certificate holder's operation as a common carrier of wrecked and/or disabled motor vehicles within and between points and places in Monongalia County, West Virginia, on the one hand and points and places in West Virginia on the other hand. Said certificate was transferred to the Applicant on May 22, 1985, and the transfer of the base of operations scheduled to be made on or about August 1, Notice was given by publication of the filing of said application and protest was received to the granting of the authority applied for therein. By order entered June 24, 1985, this matter was set for hearing before Hearing Examiner Arnold 0. Weiford to be held in the Monongalia County Courthouse, Morgantown, West Virginia, on July 15, 1985, at which time and place the Applicant would be required to appear and prosecute said application. Leave was thereby granted to anyone interested to file

2 I objection to said application at any time on or before said date or at said hearing. The hearing scheduled for July 15, 1985, was held as scheduled. The Applicant appeared in person, and was represented by Brooks E. Smith, Esquire. The Protestants, Victor Solomon, Secretary for Vic's, Inc., and Pamela J. Spooner, Secretary for Morgantown Towing and Recovery Service, appeared in person. The Applicant presented the testimony of one witness and introduced two exhibits into evidence. The Protestants each presented statements in their behalf. At the conclusion of the hearing held on July 15, 1985, the case was submitted for a decision, pending receipt of the transcript. EVIDENCE At the outset of the hearing held on July 15, 1985, the Hearing Examiner clarified that Mr. Solomon and Ms. Spooner would be granted status as Protestants, and would be permitted to make statements in regard to their protests. However, the Protestants were instructed that they would not be allowed to present witnesses in their behalf, or to crossexamine witnesses presented by the Applicant. (Tr., p. 4). The Applicant, Mr. Wallace M. Reed, was the only witness called to testify in his behalf. Mr. Reed, of Morgantown, Monongalia County, is the President and majority stockholder of Wally Reed's ESSO, Inc., also of Morgantown. It was stated by Mr. Reed that by virtue of the Commission's order in M.C. Case No TC, entered May 22, 1985, he obtained certificate rights once held by Mr. Buster Rowan. (Tr., p. 5). Mr. Reed pointed out that the transfer of the authority enabled him to operate as a common carrier within and between points and places in Monongalia County n -L- OF "'-"-"I*

3 on the one hand and points and places in West Virginia on the other hand. (Tr., p. 6). With the introduction into evidence of two maps of the Morgantown-Westover area, labeled as Applicant's Exhibit Nos. 1 and 2, Mr. Reed indicated that he is seeking to move the base of operations authorized by P.S.C. M.C. Certificate No. F-6171, to Monongahela Boulevard in Morgantown. (Tr., pp. 7-8). Mr. Reed stated that this move would be from the original location in Westover, to the north, and across the Monongahela River in Morgantown. (Tr., p. 9). Mr. Reed testified that he is fully qualified to exercise the rights obtained through P.S.C. M.C. Certificate No. F He stated that he has adopted the rates previously charged by Mr. Rowan, that his vehicle is registered with the Commission, and that he has obtained a uniform vehicle identity card for the wrecker. (Tr., p. 9). Mr. Reed also stated that the wrecker is insured, that all necessary assessment fees have been paid, and that he has advertised the fact that his company has obtained wrecker authority at a base of operations in Westover. (Tr., pp. 9-10). Mr. Reed noted that he made arrangements with Mr. Rowan to use the base of operations in Westover until the certificate could be amended to reflect the move of the base of operations to Monongahela Boulevard. (Tr., p. 10). Mr. Reed suggested that the transfer of the base of operations is in the public interest, in that the move would make his service more economical and efficient. He further testified that he has been informed that most of the business in the area is located on the Morgantown side of the Monongahela River. (Tr., p. 11). It was pointed out by Mr. Reed that OF..L-C--Y"'."* CI -3-

4 traveling from Westover to Morgantown requires that one cross the Westover Bridge, which often presents traffic delays. (Tr., pp ). Mr. Reed noted that the proposed base of operations would be located at the site of a service station that he has operated since He also noted that Exxon recently began construction in efforts to completely rebuild the station, and should finish the construction by September 1, (Tr., p. 12). Mr. Reed stated that he would continue to operate his U-Haul business at the same location on Monongahela Boulevard, and will provide wrecker service to that company when needed. (Tr., p. 13). It was reiterated by Mr. Reed that the amendment of his wrecker authority is in the public interest because it would enable his company to provide faster and more efficient service to its customers. Mr. Reed suggested that approximately three or four years ago, Mr. Rowan transferred the base of operations from the Point Marion Road, on the northeast side of the river, to the present location in Westover. (Tr., pp ). He also suggested that Protestant Mr. Solomon, doing business as Vic's, Inc., is not restricted by his authority with regard to the quantity or location of bases of operation for its business. (Tr., p. 15). Mr. Reed noted that his only business in Westover is that provided by the wrecker operations. He added that his company presently operates one wrecker, and plans to obtain a second wrecker when the service station on Monongahela Boulevard is reopened. (Tr., pp ). At the conclusion of Mr. Reed's testimony, both of the Protestants were permitted to state their concerns and reasons for protest. Protestant Ms. Spooner stated that she is associated with Morgantown Towing and Recovery Service, which obtained its authority -4-

5 approximately three years ago through a transfer of certificate rights. Ms. Spooner suggested that Mr. Reed has sought wrecker authority in past years, but has been unsuccessful. She added that conditions in the area have changed very little, and there continues to be no need for the services that he proposes to provide at the Monongahela Boulevard location. (Tr. pp ). In tracing the history of the rights recently obtained by Mr. Reed, Ms. Spooner noted that these rights were once held by Bug Work's, Inc., which was located just outside of Morgantown on the Point Marion Road. She pointed out that when these rights were transferred to Mr. Rowan in Westover, the transfer was not protested because he would not be located in Morgantown. (Tr., p. 18). Ms. Spooner testified that there are five towing services already located within approximately 1.3 miles of Mr. Reed's service station, as well as other stations within a four to five mile range. She suggested that a sufficient number of towing services are located in Morgantown to serve the needs of the area, and if Mr. Reed is granted a base of operations move, then it will be more difficult for the existing operators to continue to provide 24-hour towing service. (Tr., pp ). Ms. Spooner pointed out that the City of Morgantown and the State of West Virginia hire towing operators on the basis of a "rotation list", and tows are parcelled out depending on whose turn it is to receive the call. Because of the rotation system, if Mr. Reed adds his name to the list, then all of the towing operators already on the list will receive a smaller fraction of this business and will subsequently lose potential business. Ms. Spooner stated that her company suffered an OF w3po"."'a r -3-

6 operating loss of $8, in 1984, and will most likely suffer a greater loss in 1985, if Mr. Reed is granted the transfer. (Tr., pp ). Protestant Mr. Solomon, of Morgantown, also stated his protest to the base of operations move sought by Mr. Reed. Mr. Solomon suggested that there is no need for an additional towing service in Morgantown, because the existing wrecker operators are adequate for the area's needs, and the demand for their services has possibly decreased. He pointed out that a significant change in West Virginia University policy with respect to towing illegally parked vehicles has had a negative impact on the need for towing services in the area. (Tr., pp ). Mr. Solomon reiterated that the rotation system adopted by the City of Morgantown does not involve decisions made on the basis of quality or merit, but rather on the basis of which operator is due for the call. Because of this system, suggests Mr. Solomon, an additional operator located in Morgantown would lead to a smaller fraction of calls received by each operator already on the list. (Tr., pp ). It was stated by Mr. Solomon that his company has also suffered operating losses, due to decreased business in the area. He pointed out that an additional wrecker in Morgantown will make it very difficult for the existing operators in the area to maintain their businesses, arid will eventually hurt their ability to adequately serve the public. (Tr., p. 28). Upon questioning by Mr. Smith and Hearing Examiner Weiford, Mr. Solomon stated that his wrecker company is most likely not restricted to operate from a particular base of operations. (Tr., pp ).. -6-

7 FINDINGS OF FACT 1. The Applicant, Wally Reed's ESSO, Inc., is authorized to operate as a common carrier of wrecked and/or disabled motor vehicles within and between points and places in Monongalia County, West Virginia, on the one hand and points and places in West Virginia on the other hand. (Tr., p. 3, P.S.C. M.C. Certificate No. F-6171, Commission Order transferring certificate on May 22, 1985). 2. The Applicant's common carrier authority, obtained by a transfer of the rights once held by Mr. Buster Rowan, presently designates a base of operations located in the City of Westover, Monongalia County. (Tr., pp The Applicant made arrangements with the Transferor, Mr. Rowan, to use his base of operations in Westover, until arrangements could be made to move the base to a location at 824 Monongahela Boulevard, Morgantown. (Tr., pp. 9-10). 4. The Applicant's amendment seeks to move the present base of operations from the Westover side of the Monongahela River to the Morgantown side of the river. (Tr., p. 9). 5. Protestant Mr. Solomon, doing business as Vic's, Inc., is not restricted by his authority to any particular quantity or location of his bases of operation. (Tr., pp. 15, 29-30). DISCUSSION OF THE ISSUES AND APPLICABLE LAW It has been the policy of the Commission that when a common carrier requests a transfer of its base of operations, it is sufficient to prove only that the proposed base of operation is reasonably located within the basic operating area authorized by his certificate. Once such - - l-

8 proof has been presented, the transfer of the certificate holder's base of operation will be granted unless the carriers or parties opposed to the transfer of the base of operations establish by a preponderance of the evidence that such a transfer would be contrary to the public interest. (Larry Childress, M.C. Case No , Commission Order entered Septem- ber 17, 1980). In 1979, the Commission affirmed a number of important legal principles with regard to motor carrier law, in Mac's Wrecker Service, Inc., M.C. Case No. 3358, Commission Order entered December 13, Of those principles, a most relevant point was made about discriminatory policy directed at a particular market. In Mac's, supra, the Commission held that it is unlawfully discriminatory and against public policy to permit an existing wrecker company to possess the unlimited right to add trucks in meeting the needs of the general public and in the same or substantially overlapping territory limit the number of trucks that another wrecker company can employ in serving its customers... 1' In applying this principle to the facts presented in Mac's, supra, the Commission concluded that the Applicant should be permitted to amend his common carrier certificate to increase the number of wrecker trucks that could be operated by the company. Basing its reasoning on the above-quoted passage, it found that it would indeed be unlawfully discrim- inatory to allow a competing common carrier to operate an unlimited number of wrecker trucks, but restrict the applicant's operations to a specific number of wrecker trucks. Applying the law supporting the decisions of Larry Childress and Mac's, supra, the Hearing Examiner is of the opinion and finds that the base of operations move sought by the Applicant is justified. The -8-

9 proposed base on Monongahela Boulevard is within a reasonable distance of the present location in Westover, and it has not be demonstrated by the Protestants that the move will truly be contrary to the public interest. As is evident from the record in this case, the statements made by the Protestants at the hearing were directed at the previously resolved issue of the need for an additional common carrier. It appeared as though the Protestants did not understand that Mr. Reed had already obtained the authority to operate a towing service. Few points were made by Ms. Spooner or Mr. Solomon regarding the reasonableness of the relocation sought by Mr. Reed. Furthermore, it is clear that a restriction on the quantity or location of bases of operation placed on Mr. Reed, but not on Mr. Solomon, is not unlike the type of discrimination found in Mac's, supra. It is patently unfair to place certain limitations on particular carriers, and fail to apply those limitations on other carriers within the relevant market or area. The unequal application of such limitations establishes an unfair competitive advantage for the unrestricted common carrier, and is contrary to the principles stated in Mac's, supra. Hence, the Hearing Examiner is of the opinion and finds that the base of operations move sought by the Applicant is reasonable and not contrary to the public interest. The Hearing Examiner also finds that, in view of the freedom of locating bases of operation as enjoyed by Protestant Mr. Solomon, it would be arbitrary and capricious to not grant the Applicant his amendment. n -Y- OF.-.-:"I*

10 I CONCLUSION OF LAW 1. The Applicant has established by a preponderance of the evidence that the proposed base of operation is reasonably located near the present base of operations in Westover, Monongalia County, as required by the Commission's policy set forth in Larry Childress, M.C. Case No , Commission Order entered September 17, The Protestants have failed to prove by a preponderance of the evidence that granting the proposed base of operation move would be contrary to the public interest, as required by the Commission's policy set forth in Larry Childress, M.C. Case No , Commission Order entered September 17, The base of operations restriction contained in the Applicant s authority is unlawfully discriminatory and arbitrary, when the restriction is not equally applied among all competitors in the relevant market as regulated by the Public Service Commission. (See Mac's Wrecker Service, Inc., M.C. Case No. 3358, Commission Order entered December 13, 1979). 4. The proposed base of operation move sought by the Applicant should be granted. ORDER I I I IT IS, THEREFORE, ORDERJ3D that the application of Wally Reed's ESSO, Inc., a corporation, Morgantown, Monongalia County, to amend P.S.C. M.C. Certificate No. F-6171, is hereby approved, authorizing the certificate holder's operation as a common carrier of wrecked and/or disabled motor vehicles within and between points and places in Monongalia County, West Virginia, on the one hand and points and places in West Virginia on -10-

11 the other hand, from a base of operation located at 824 Monongahela Boulevard, Morgantown, Monongalia County. 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. A0W:dfs Arnold 0. Weifsd Hearing Examiner -11-