Pony Express Courier Corp. v. Tidewater Commercial Deliveries, Inc.

322 S.E.2d 844, 228 Va. 568, 1984 Va. LEXIS 331
CourtSupreme Court of Virginia
DecidedNovember 30, 1984
DocketRecord No. 831929; Record No. 831930
StatusPublished

This text of 322 S.E.2d 844 (Pony Express Courier Corp. v. Tidewater Commercial Deliveries, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pony Express Courier Corp. v. Tidewater Commercial Deliveries, Inc., 322 S.E.2d 844, 228 Va. 568, 1984 Va. LEXIS 331 (Va. 1984).

Opinions

THOMAS, J.,

delivered the opinion of the Court.

This is an appeal of right from the State Corporation Commission. The Commission granted Tidewater Commercial Deliveries, Inc. (TCD), a statewide restricted parcel carrier certificate pursuant to the Restricted Parcel Carriers’ Act (the Act), Code §§ 56-338.65 et seq. Pony Express Courier Corporation (Pony Express) and Purolator Courier Corporation of Virginia (Purolator) opposed TCD’s application on several grounds including their contention that TCD, if granted the certificate, would not and could not meet the full territorial service requirement set forth in Code §§ 56-338.65(e)(4) and 56-338.77. The Commission found as a fact that TCD proposed a new and innovative service. Once that finding was made, the Commission, relying upon this Court’s decision in Blanton’s Delivery v. Pony Express, 219 Va. 280, 247 S.E.2d 397 (1978), concluded that TCD had thereby established public convenience and necessity, and ruled that TCD was entitled to a statewide restricted parcel carrier certificate.

On appeal, Pony Express and Purolator make several assignments of error. Among these is a repeat of the argument made before the Commission concerning the full territorial service issue. In our opinion that issue is dispositive. Therefore, we will not consider the other assignments of error.

TCD was incorporated in 1976. At that time, TCD’s sole stockholder, John Bowditch, perceived a need to provide to automobile dealerships in Newport News the immediate delivery of automobile parts for use in their service departments. The general purpose of TCD was to provide a delivery service that responded immediately to customer requests on a “time sensitive” basis.

In January 1977, TCD acquired a contract carrier permit pursuant to Code § 56-288. This permit allowed TCD to transport property between all points in Virginia subject to the restriction that the property of no more than two consignors at any one time could be transported in a single vehicle. See Code § 56-289. Using its contract carrier status, TCD developed a time sensitive delivery service in much of the Tidewater area.

[572]*572In December 1977, TCD was granted a restricted parcel carrier certificate authorizing it to transport parcels, subject to certain size and weight limitations, between all points within the counties of Gloucester, James City, and York and the cities of Chesapeake, Hampton, Newport News, Norfolk, Poquoson, Portsmouth, Virginia Beach, and Williamsburg. As a restricted parcel carrier, TCD was authorized to transport parcels in and around Tidewater without regard to the two-consignor rule.

Through use of its contract carrier status, TCD built up a clientele in Richmond. At the time the statewide application was filed, TCD had 12 vehicles stationed in Newport News and 12 stationed in Richmond.

The Commission found that TCD had developed a method of operation different from other carriers in the Commonwealth. First, the operation was designed to satisfy a public need for the immediate dispatch of vehicles and delivery of parcels. Further, TCD developed a coding system that classified parcels according to the customer’s timing requirements. Those codes include: (1) critical handling for customers who need immediate service, (2) priority handling for customers who need pickups in four to six hours, and (3) routine or overnight service. The Commission found that TCD did not operate over regular routes on a daily schedule. According to the Commission, all service was conducted over irregular routes, and 90% of TCD’s business was time sensitive.

In its opinion, the Commission also addressed the full territorial service issue. It wrote as follows regarding the meaning of that phrase:

In our opinion, the terminology “full territorial service” only requires a carrier to have the ability and willingness to serve a customer request, regardless of the customer’s geographic location.

According to the Commission, a two-part standard applies to the resolution of the full territorial service issue: ability and willingness. Applying its test to the facts of this case, the Commission concluded as follows: “Bowditch testified that TCD is ready, willing and able to serve all requests for service regardless of geographic location.” In the Commission’s opinion, Bowditch’s statement was enough to meet the statute’s full territorial service [573]*573requirement. Pony Express and Purolator respond that if this Court upholds the Commission’s ruling, any person with a car who expresses a willingness to drive around Virginia will be entitled to a restricted parcel carrier certificate.

The full territorial requirement is set forth at two places in the Act. In Code § 56-338.65(e), the status is defined as follows:

“Restricted parcel carrier” means any person who or which undertakes to engage exclusively in the transportation for compensation of parcels, packages and articles not in a package, subject to the following restrictions and conditions:
(4) Service shall be provided on a full territorial basis, with pickup and delivery at any and all locations in the area authorized to be served, including locations in rural areas or not in any incorporated city or town, and whether requiring operation over regular or irregular routes.

The requirement contained in Code § 56-338.65(e)(4) is repeated almost verbatim in Code § 56-338.77. The attention paid by the General Assembly to the issue of full territorial service makes clear that this issue must be given careful consideration in any case where a restricted parcel carrier certificate is sought. It is plain that the legislature intended to prevent a carrier, certified under these statutory provisions, from concentrating upon one portion of its service territory while ignoring the remainder of that territory. The full territorial service requirement is a rule of uniformity designed to insure that all the citizens in a given service area will be provided substantially the same service.

In the proposed tariff, filed as part of its application, TCD recites the full territorial service rule and states that the tariff and TCD’s service will meet the requirements of that rule. In the tariff, the Commonwealth is divided into three zones: Zone T, which encompasses Tidewater and is subdivided into 9 parts; Zone R, which encompasses Richmond and is subdivided into 11 parts; and Zone 10, which encompasses all geographic areas of Virginia other than Richmond and Tidewater. The proposed tariff describes three types of handling: regular, priority, and critical. Significantly, priority handling — which provides for delivery within four to six hours — is not available in Zone 10. That is, despite [574]*574the statement in the tariff that full territorial service is provided, the tariff itself reveals that only Richmond and Tidewater will receive all of TCD’s services while the rest of the Commonwealth will not.

In his testimony, TCD’s sole stockholder, Bowditch, shed further light on the full territorial service issue. He testified that if the requested certificate were granted, TCD would, within 12 months, expand into northern Virginia. He said that the Roanoke Valley would follow, then probably Charlottesville and the Shenandoah Valley. He admitted the lack of priority handling in most of Virginia.

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Related

Blanton's Package Delivery, Inc. v. Pony Express Courier Corp.
247 S.E.2d 397 (Supreme Court of Virginia, 1978)
Barnes Transfer & Storage, Inc. v. Lee Moving, Inc.
218 S.E.2d 437 (Supreme Court of Virginia, 1975)

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Bluebook (online)
322 S.E.2d 844, 228 Va. 568, 1984 Va. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pony-express-courier-corp-v-tidewater-commercial-deliveries-inc-va-1984.