PENNSYLVANIA

PUBLIC UTILITY COMMISSION

Harrisburg, PA 17105-3265

Public Meeting held July 26, 2001

Commissioners Present:

Glen R. Thomas, Chairman

Robert K. Bloom, Vice-Chairman

Aaron Wilson, Jr.

Terrance J. Fitzpatrick

Application of Edward P. Nerino, A00117210

t/d/b/a Ed’s Tours

OPINION AND ORDER

BY THE COMMISSION:

Before the Commission for consideration and disposition are the Exceptions of GodwinS. Fisher, Haughton Fisher, and BaldwinW. Fisher, t/d/b/a The Brothers We Care ParaTransit Pool (Protestants) filed on April9, 2001, relative to the Initial Decision of Administrative Law Judge (ALJ) Debra Paist issued in the above-captioned proceeding.

History of the Proceeding

On August2, 2000, Edward P. Nerino, t/d/b/a Ed’s Tours, (Applicant) filed an Application with the Pennsylvania Public Utility Commission (Commission) requesting a broker’s license to arrange for the transportation of persons between points in Pennsylvania. On October21, 2000, notice of the Application was published in the Pennsylvania Bulletin with a specified protest filing deadline of November13, 2000. (52Pa. Code Sections3.381(b) and (c)(1)(ii)).

On November13, 2000, a Protest to the Application was filed by the (Protestants) alleging that “[a]pproval of the application would create a new and unwarranted competition to the detriment of Protestants, and, ultimately the Public.” Subsequent to an evidentiary hearing, ALJ Debra Paist issued an Initial Decision on March21, 2001, wherein she dismissed the Protest and directed that the case be referred to the Commission’s Bureau of Transportation and Safety (BTS) for modified procedure pursuant to Section3.381(1)(iii) of the Commission’s Regulations, 52Pa. Code §3.381(1)(iii).

The Protestants filed Exceptions to the ALJ’s Initial Decision on April9, 2001.

Discussion

In her Initial Decision, ALJ Paist drew five Conclusions of Law, which we shall incorporate herein by reference unless specifically or by necessary implication they are modified or reversed by this Opinion and Order.

We note that we are not required to consider expressly, or at great length, each and every contention raised by a party to our proceedings. (University of Pennsylvaniav. Pennsylvania Public Utility Commission, 86Pa 410, 485A.2d 1217, 1222 (1984)). Any exception or argument that is not specifically addressed herein shall be deemed to have been duly considered and denied without further discussion.

The Protestants, in their Exceptions, argue that there is “a contradiction, based on sub-section2501(b) of the Public Utility Code.” The Protestants further contend that Section39.5 of our Regulations, 52Pa. Code §39.5, also provides, in pertinent part, that, “no broker may employ, or engage a carrier who, or which is unable to lawfully provide the transportation.” Consequently, the Protestants argue that if the above-cited Regulation holds true, then a carrier need not utilize a broker and thereby incur unnecessary broker’s fees.

We believe that it will be instructive to quote Subsection 2501(b) of the Public Utility Code, 66Pa. C.S. §2501, which defines a broker as:

[a]ny person or corporation not included in the term ‘ motor carrier’ and not a bonafide employee or agent of any such carrier, or group of such carriers, who or which, as principal or agent, sells or offers for sale and transportation by a motor carrier, or the furnishing, providing, or procuring of facilities therefor, or negotiates for, or holds out by solicitation, advertisement, or otherwise, as one who sells, provides, furnishes, contracts, or arranges for such transportation, or the furnishing, providing, or procuring of facilities therefor, other than as a motor carrier directly or jointly, or by arrangement with another motor carrier, and who does not assume custody as a carrier. (Emphasis Added)

It is unclear whether the Protestants are claiming a contradiction just in Subsection2501(b) of the Code, or if the contradiction claimed is between Subsections2501(b) and 52Pa. Code §39.5. Nevertheless, we can find no basis for the Exception and we, therefore, conclude that the argument proffered by the Protestants is misplaced. Therefore, we will deny this Exception.

The Protestants also except to the ALJ’s Conclusion of Law No.5 wherein the ALJ concluded that the Protestants have not asserted any interest which gives them


standing[1] to protest the Application at A0117210. The Protestants contend that they were deceived and misled with hearing notices, cancellations and rescheduling of hearings. The Protestants further contend that the fact that all their competitors, diverted funds and rerouted passengers confers upon them the requisite standing to participate in this proceeding.

We note that per Secretarial Letter issued on March26, 2001, the Protestants’ certificate of authority at Docket No. A-00111158 to transport persons in paratransit service between points in Pennsylvania was revoked. The Protestants’ assertion that “all competitors, diverted funds, and re-routed passengers, gives us standing in this matter” is misplaced. Consistent with applicable law, we routinely consider the competition factor as well as the need for service and the fitness of the applicant. (See e.g., Chemical Leaman Tank Lines, Inc.v. Pennsylvania Utility Commission, 201Pa. Super. Ct. 196, 191A.2d 876 (1963); 52Pa. Code §41.14(c)).

Furthermore, we note that the Applicant is seeking authority at Docket No.A00117210 to act as a broker (travel agent) who arranges the transport of persons between points in Pennsylvania by Commission-authorized motor carriers. Contrary to the assertions of the Protestants, the Applicant is not seeking authority to compete with the Protestants because the Applicant is not requesting authority to perform any passenger transportation services. Therefore, we conclude that the Protestants have failed to demonstrate the requisite standing to protest the instant Application.

Conclusion

We have carefully reviewed the record as developed in this proceeding, including the ALJ’s Initial Decision and the Exceptions filed thereto. Based on our review of the record evidence and applicable law, we conclude that the Exceptions of the Protestants are without merit and, as such, they will be denied; THEREFORE,

IT IS ORDERED:

1. That the Exceptions to the ALJ’s Initial Decision filed by Godwin Fisher, Haughton Fisher, and BaldwinW. Fisher, t/d/b/a The Brothers We Care are denied.

2. That the Initial Decision of Administrative Law Judge Debra Paist is adopted to the extent that it is consistent with this Opinion and Order.

3. That this proceeding is hereby referred to the Commission’s Bureau of Transportation and Safety for modified procedure pursuant to 52Pa. Code §3.381(a)(1)(iii).

BY THE COMMISSION,

James J. McNulty

Secretary

(SEAL)

ORDER ADOPTED: July 26, 2001

ORDER ENTERED: July 31, 2001

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[1] Standing requires that an aggrieved party has an interest which is substantial, direct and immediate in the outcome of a justiciable controversy. To have a direct interest means that the aggrieved party must show causation of the harm to his interest by the matter of which he complains. (Penn-Harris Hotel co. v. Pa. P.U.C., 166Pa. Super. 394, 71 A.2d 853 (1950)