Lehigh Valley Transportation Services, Inc. v. Pennsylvania Public Utility Commission

56 A.3d 49, 2012 WL 4800463, 2012 Pa. Commw. LEXIS 289
Commonwealth Court of Pennsylvania·Decided October 10, 2012·Published·Cited by 9 cases

Opinion

OPINION BY

Judge COHN JUBELIRER.

When J & J Leasing & Rentals, Inc., d/b/a Anytime Airport Taxi by J & J Luxury Transportation (J & J) requested that the Pennsylvania Public Utility Commission (PUC) add “call and demand taxi services” to its existing services, two competitors protested. After a hearing, an [52] Administrative Law Judge (ALJ) approved the addition of these services, and the PUC subsequently denied the competitors’ exceptions. On appeal, we hold that the PUC did not err in finding that: (1) J & J met its burden of proving a present public need for the additional call and demand taxi services; and (2) that J & J does not lack the propensity to operate safely and legally.

On February 19, 2010, J & J filed an application (Application) with the PUC to amend its certificate of public convenience to add call and demand taxi services to its existing services.1 Notice of the Application was posted in the Pennsylvania Bulletin, and two competitors, Lehigh Valley Transportation Services, Inc. (Lehigh) and Quick Service Taxi Company, Inc. (Quick Service), filed timely protests. The matter was assigned to an ALJ to hold hearings. J & J, Lehigh, and Quick Service presented both testimony and documentary evidence.

In order to add the call and demand taxi services, J & J had to meet the requirements in Section 1103(a) of the Public Utility Code (Code), 66 Pa.C.S. § 1103(a), and Section 41.14 of the regulations, 52 Pa. Code § 41.14. At issue is whether J & J initially met its burden of proving that there was a present public need for the services, (Section 1103(a)), and whether the protestors thereafter met their burden of proving that J & J lacks a propensity to operate safely and legally, (Section 41.14(b) of the PUC’s regulations).

At the hearing J & J presented fact witnesses, who testified in support of the present need for additional call and demand taxi services, and J & J’s Vice President of Operations, Denise Sam Cali, who testified about J & J’s finances, facilities, all aspects of its operations, and introduced numerous exhibits in support of J & J’s Application. Lehigh and Quick Service cross-examined J & J’s witnesses and presented witnesses of their own and some documentary evidence in opposition to the Application.

J & J’s witnesses testified about the need for call and demand taxi services. Some testified that they would use these services either for themselves, for family members, or business clients.2 Some testi[53] fied either that they have used Lehigh or Quick Service in the past, but were not satisfied with the service, or that they would not use Lehigh or Quick Service based on concerns about the safety or cleanliness of the vehicles, the “unkempt” appearance or attitude of the drivers, or because they were told that those businesses did not provide service to where the witness lived. Additionally, J & J presented a list of individuals who had contacted them for call and demand services, which J & J referred to other providers. (FOF ¶¶ 26-35; J & J Ex. 16, PUC Br. at Appendix A.)

Additionally, J & J offered the testimony of Ms. Cali, the supervisor of J & J’s finances, employees, facilities and vehicles, and who submitted numerous exhibits which were admitted into the record. J & J has the necessary federal permits to provide interstate services and has been licensed by the PUC since 1985 to provide limousine, group and party service, para-transit, and airport transfer services. J & J employs approximately 80 drivers, who, together, speak five different languages. Those drivers must pass a pre-employment examination and receive on-the-job training before they can drive for J & J, the drivers must maintain all the licenses required to operate the appropriate vehicles,3 and J & J requires ongoing testing, training, and evaluations of its drivers. Additionally, J & J uses mystery shoppers to evaluate its drivers, and has rules and a program to address driver training, accidents, vehicle maintenance, and safety. J 6 J maintains all of the necessary bodily injury and property damage insurance on its vehicles, and already has the meters necessary to provide the call and demand service. J & J operates 24 hours per day, 7 days per week, year round from its offices in Allentown, where 14-16 people work, including day and night supervisors, bilingual dispatchers, 4 mechanics who are on call 24 hours per day, and a safety supervisor. Ms. Cali testified as to J & J’s financial particulars, which are not at issue in this appeal. J & J has received two PUC complaints, one of which was withdrawn by the PUC and the other was resolved by settlement. There was no evidence that J & J, or any of its drivers, have been convicted of a crime of moral turpitude and remains under the supervision of a court or prison. (FOF ¶¶ 1-8, 10-17.)

In opposition to J & J’s request, Le-high’s General Manager (General Manager) testified that, on January 29, 2011 and April 9, 2011, he was solicited by individuals who offered to provide transportation to him from the Sands Casino in Bethlehem to a non-airport location in vehicles marked for J & J’s airport transport service. (Hr’g Tr. at 165-72, R.R. at 85a-92a.) A consultant for Lehigh testified that a person, who proffered a J & J business card but did not have a J & J marked vehicle, transported him for a flat $10.00 fee, rather than a rate based on mileage. (FOF ¶¶ 18-20.) Quick Service’s evidence revealed that its services are not co-extensive with those J & J seeks, as [54] Quick Service cannot provide services in Northampton County. Quick Service receives calls for services at the Lehigh Valley International Airport and sends one to five taxis there each day. Lehigh and Quick Service also presented copies of J & J’s on-line and telephone book advertising, which were unclear exactly what call and demand services (interstate or intrastate airport transfer service) are being offered by which J & J entity, Anytime Taxi by J & J or Anytime Airport Taxi by J & J. (FOF ¶¶ 20-22.)

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Lehigh Valley Transportation Services, Inc. v. Pennsylvania Public Utility Commission, 56 A.3d 49, 2012 WL 4800463, 2012 Pa. Commw. LEXIS 289 (Pa. Ct. App. 2012).

56 A.3d 49 (Lehigh Valley Transportation Services, Inc. v. Pennsylvania Public Utility Commission) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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