Section 41.14. Evidentiary criteria used to decide motor common carrier applications—statement of policy

(a) An applicant seeking motor common carrier authority has a burden of demonstrating that approval of the application will serve a useful public purpose, responsive 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. In addition, authority may be withheld if the record demonstrates that the applicant lacks a propensity to operate safely and legally. In evaluating whether a motor carrier applicant can satisfy these fitness standards, the Commission will ordinarily examine the following factors, when applicable:

(1) Whether an applicant has sufficient capital, equipment, facilities and other resources necessary to serve the territory requested.

(2) Whether an applicant and its employees have sufficient technical expertise and experience to serve the territory requested.

(3) Whether an applicant has or is able to secure sufficient and continuous insurance coverage for all vehicles to be used or useful in the provision of service to the public.

(4) Whether the applicant has an appropriate plan to comply with the Commission’s driver and vehicle safety regulations and service standards contained in Chapter 29 (relating to motor carriers of passengers).

(5) An applicant’s record, if any, of compliance with 66 Pa.C.S. (relating to the Public Utility Code), this title and the Commission’s orders.

(6) Whether an applicant or its drivers have been convicted of a felony or crime of moral turpitude and remains subject to supervision by a court or correctional institution.

(c) The Commission will grant motor common 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 an extent that, on balance, the granting of authority would be contrary to the public interest.

(d) Subsections (a) and (c) do not apply to an applicant seeking authority to provide motor carrier of passenger service under § § 29.331—29.335 (relating to limousine service).

The provisions of this § 41.14 adopted November 19, 1982, effective January 1, 1983, 12 Pa.B. 4282; amended May 4, 2001, effective May 5, 2001, 31 Pa.B. 2385; amended July 23, 2004, effective July 24, 2004, 34 Pa.B. 3912. Immediately preceding text appears at serial pages (290109) to (290110).

Notation

Notes of Decisions

Applicant’s Burden

Motor common carrier applicants need not show inadequacy in the existing service and protestants assume the burden of showing that the entry of a new carrier endangers the existing carrier’s operation, thus rendering the grant of the application contrary to public policy. Morgan Drive Away, Inc. v. Pennsylvania Public Utility Commission, 512 A.2d 1359 (Pa. Cmwlth. 1986).

Commission Authority

While denying transfer of a certificate of public convenience on the grounds of profiteering and trafficing, the Commission exceeded its authority by applying criteria not specifically provided for by regulation. South Hills Movers, Inc. v. Pennsylvania Public Utility Commission, 601 A.2d 1308 (Pa. Cmwlth. 1992).

The Commission did not exceed its authority in reformulating evidentiary criteria under this section, since the requirement of proving inadequacy of existing service was not statutory but had arisen in a regulatory context. Yellow Cab Company v. Pennsylvania Public Utility Commission, 524 A.2d 1069 (Pa. Cmwlth. 1987).

Evidence

On an application for additional transportation authority, the Commission properly considered the applicant’s unauthorized service as proof of public need where the service was based on a good faith misunderstanding of the scope of its certificate and the revenues generated thereby may be considered in determining the applicant’s financial fitness. W. C. McQuaide, Inc. v. Pennsylvania Public Utility Commission, 585 A.2d 1151 (Pa. Cmwlth. 1991).

The Commission’s regulations promulgating evidentiary criteria are applicable to passenger carrier applications. Yellow Cab Company v. Pennsylvania Public Utility Commission, 524 A.2d 1069 (Pa. Cmwlth. 1987).

Evidence/Sufficient

Although the Pennsylvania Public Utility Commission admonished the taxicab company for its unauthorized operations and the irregularities in it’s past annual reports, the Commission accepted the evidence presented by the company as credible and determined that the company was likely to comply with the regulation in the future. Thus, the Commission’s finding that the company possessed the propensity to operate legally was based upon its credibility determinations and should not be disturbed on appeal. Loma, Inc. v. Pennsylvania Public Utility Commission, 682 A.2d 424 (Pa. Cmwlth. 1996); appeal denied 698 A.2d 597 (Pa. 1992).

Although the primary shareholder of the corporation filing an application for common carrier had some previous legal problems, these incidents were not sufficient to justify piercing the corporate veil and thereby deny common carrier status for these incidents failed to show that the corporation lacked the ability to operate safely and legally. Yellow Cab Co. v. Pennsylvania Public Utility Commission, 673 A.2d 1015 (Pa. Cmwlth. 1996).

Public Utility Commission erred in concluding that testimony of witness, even if credible, was not sufficiently definite to serve as basis for finding that applicant assaulted witness. Limelight Limousine, Inc. v. Pennsylvania Public Utility Commission, 580 A.2d 472 (Pa. Cmwlth. 1990).

Evidence of record supported Commission’s finding that application for Certificate of Public Convenience satisfied the Commission’s established criteria and standard. Limelight Limousine, Inc. v. Pennsylvania Public Utility Commission, 570 A.2d 1378 (Pa. Cmwlth. 1990).

Court may not make independent judgment and substitute the Commission’s findings under the evidentiary criteria promulgated by the Commission, where the findings are adequately supported by the evidence. Yellow Cab Company v. Pennsylvania Public Utility Commission, 524 A.2d 1069 (Pa. Cmwlth. 1987).

Prior Unlawful Operations

It is well established that a motor carrier authority applicant’s prior unlawful operations do not preclude the Commission from granting authority in a subsequent proceeding. Loma, Inc. v. Pennsylvania Public Utility Commission, 682 A.2d 424 (Pa. Cmwlth. 1996).