Bebe Enterprises, Inc. v. Public Service Commission

491 S.E.2d 19, 201 W. Va. 19, 1997 W. Va. LEXIS 132
CourtWest Virginia Supreme Court
DecidedJuly 1, 1997
DocketNo. 23452
StatusPublished

This text of 491 S.E.2d 19 (Bebe Enterprises, Inc. v. Public Service Commission) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bebe Enterprises, Inc. v. Public Service Commission, 491 S.E.2d 19, 201 W. Va. 19, 1997 W. Va. LEXIS 132 (W. Va. 1997).

Opinion

PER CURIAM:

This is an appeal by Bebe Enterprises, Inc. (hereinafter “Appellant”), from a February 21, 1996, order of the West Virginia Public Service Commission (hereinafter [21]*21“PSC”) denying the Appellant’s request to add territory to its existing garbage collection route in McDowell County. The Appellant contends that the PSC’s denial of its request was based upon a misapplication of legal principles. We affirm the decision of the PSC.

I.

FACTUAL BACKGROUND

On March 13, 1995, Eddie Hairston, d.b.a. Hairston Garbage Disposal Hairston (hereinafter “Hairston”) filed an application with the PSC for transfer of Hairston’s authority for a particular subject territory in McDowell County to another hauling company, Morgan Sanitation (hereinafter “Morgan”).1 The Appellant protested this transfer, as did other area carriers. On March 15, 1995, the Appellant sought to amend its own common carrier certificate to include authority to provide service to the area formerly served by Hairston.2 Hairston and Morgan then protested the Appellant’s application to serve these additional areas.3

On June 22, 1995, Administrative Law Judge Miles C. Cary held a hearing on the proposed transfer of territory from Hairston to Morgan. Mr. Thomas Hanna, attorney for the Appellant, was present. Based upon an agreement between Morgan and the Appellant regarding the transfer language, the Appellant withdrew its protest. The additional agreed-upon language provided: “and excluding all points going north on Route 161 that are more than one-half mile by road from the intersection of Route 103 and Route 161.”

On August 8, 1995, Administrative Law Judge Cary issued a recommended decision approving the transfer of the territory from Hairston to Morgan, as amended pursuant to agreement between Morgan and the Appellant. Final approval of this transfer was delayed until February 6, 1996, due to intervention of commission staff members in an attempt to obtain clarification of language contained in the new Morgan certificate regarding Routes 103 and 161.

On August 18, 1995, Administrative Law Judge Robert W. Glass held a hearing on the Appellant’s application for the territory. The Appellant introduced evidence regarding the inadequacy of Hairston’s service, contending that approximately 200 of Hairston’s customers had apparently been taken over by Appellant and twenty-five customers had been assumed by Morgan. Even the city of Gary, West Virginia, apparently took over some of the service for Hairston’s 520 customers. Public Service Commission utility inspector Mr. Charles Dyer also testified that the PSC had received numerous complaints about Hairston’s service from 1993-1995. Those complaints alleged decreased significantly when Morgan began servicing Hairston’s customers.

Morgan was permitted to participate in the August 18, 1995, hearing due to its status as intervenor in the matter, and it presented the testimony of two customers formerly served by Hairston. Each customer testified that she was satisfied with Morgan’s service. On August 21, 1995, Morgan withdrew its request for emergency certification for the area.

On August 23, 1995, Thornton Cooper, Deputy Director of Transportation Division, filed a motion to intervene and also filed exceptions to the August 8, 1995, recommended order of Administrative Law Judge Cary. Mr. Cooper expressed concern that although the parties may have understood the language and intent of the amended section, that section was ambiguous. On September 5,1995, counsel for Morgan, Leonard Knee, filed a map depicting the intent of the [22]*22parties regarding the areas surrounding Routes 103 and 161. On September 13,1995, Mr. Cooper recommended that those route numbered areas be referenced as certain territory rather than a road route number.

On November 9, 1995, Administrative Law Judge Glass issued a recommended order denying the Appellant’s application to serve the area in question. The order stated that the Appellant had not “met its burden to show that there exists in the area of the amendment a need for additional trash service that is not being adequately and efficiently provided by the presently certificated trash haulers serving the area.” However, the order also recognized that the transfer of authority fi*om Hairston to Morgan had not yet been approved and was then pending. The Appellant filed exceptions to Administrative Law Judge Glass’ order on November 27,1995.

On February 6,1996, the territory in question was transferred from Hairston to Morgan, and Hairston was paid $10,000. The PSC approved the transfer as amended by Morgan/Bebe agreement and including the territory restatement by Mr. Cooper and his staff, as referenced above. By order dated February 21, 1996, the PSC reiterated the November 9,1995, recommended order denying the Appellant’s application. On March 22, 1996, the Appellant filed its petition with this Court.

II.

STANDARD OF REVIEW AND PSC EVALUATION

This Court’s standard of review with respect to this matter was enunciated in syllabus point one of Sexton v. Public Service Commission, 188 W.Va. 305, 423 S.E.2d 914 (1992), as follows:

“ ‘ “[A]n order of the public service commission based upon its finding of facts will not be disturbed unless such finding is contrary to the evidence, or is without evidence to support it, or is arbitrary, or results from a misapplication of legal principles.” United Fuel Gas Company v. The Public Service Commission, 143 W.Va. 33, 99 S.E.2d 1 (1957).’ Syllabus Point 5, in part, Boggs v. Public Service Comm’n, 154 W.Va. 146, 174 S.E.2d 331 (1970).” Syllabus Point 1, Broadmoor/Timberline Apartments v. Public Service Commission, 180 W.Va. 387, 376 S.E.2d 593 (1988).

The Appellant asserts that the PSC was clearly wrong in denying its request for an amendment to expand service to the area in question. The Appellant further asserts that Morgan, an existing carrier serving without PSC authority, should not be permitted to use evidence of its adequate service to prevent a prospective applicant for the same territory from obtaining a certificate for the territory. The Appellant also contends that the PSC was presented with two separate and distinct matters, which the PSC then inappropriately combined. Morgan’s case regarded transfer while the Appellant’s case dealt with adequacy of existing services. The Appellant contends that the matters were not proper for consolidation because they involved different inquiries and that the PSC did not adequately address the issues raised by the Appellant.

West Virginia Code § 24A-2-5(a)-(c) (1992) provides the requirements for a certificate of convenience and necessity and establishes that a common carrier may obtain a certificate from the PSC by filing an application and by participating in a hearing procedure. Subsection (a) of the statute provides, in pertinent part, as follows:

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Bluebook (online)
491 S.E.2d 19, 201 W. Va. 19, 1997 W. Va. LEXIS 132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bebe-enterprises-inc-v-public-service-commission-wva-1997.