Purolator Security, Inc. v. Commonwealth

Dissenting Opinion by

Judge Mencer :

I respectfully dissent.

Essentially, I believe that this Court’s extremely narrow scope of review and the record in this case preclude our reversal of the interpretation by the Public Utility-Commission (PUC) of its own order. The majority has correctly noted that the PUC is peculiarly fitted'to interpret its own orders and to determine the extent and the limit of transportation rights granted to a carrier under its certificate of public convenience. See Ferry v. Public Utility Commission, 192 Pa. Superior Ct. 331, 162 A.2d 266 (1960); Marmer v. Public Utility Commission, 190 Pa. Superior Ct. 436, *185154 A.2d 262, allocatur denied (1959). Also briefly mentioned by the majority was resulting limited review by this Court to determine whether the construction placed upon a certificate by the PUC is clearly erroneous, arbitrary, and unsupported by the evidence. See T. M. Zimmerman Co. v. Public Utility Commission, 195 Pa. Superior Ct. 77, 169 A.2d 322 (1961); Ferry, supra; Marmer, supra; W. J. Dillner Transfer Co. v. Public Utility Commission, 175 Pa. Superior Ct. 461, 107 A.2d 159 (1954). However, I do not believe this scope of review and the reasoning supporting it have been correctly applied by the majority.

The issue before this Court is whether the PUC’s decision, that its prior grant of authority to transport “property” meant the right to transport all types of general commodities, including monies, securities, and other valuables, was clearly erroneous, arbitrary, and unsupported by the evidence. In reaching a decision, the Court may weigh several considerations.

A significant but not sole consideration is the type of service contemplated at the time of the original application for a certificate of public convenience. See Ferry, supra. The instant record clearly reveals both that the original applicant contemplated hauling “near everything,” including commodities which required specialized hauling equipment, and that the applicant was granted authority to transport “property” between points in a limited geographical area. Reviewing these facts and recalling that those carriers which only provide hauling for particular types of commodities are normally granted wide geographical authority,1 the PUC concluded that the hauling of “near everything” was indeed contemplated at the time the original certificate was granted. While many aspects of this case *186are clear, it is not clear that this conclusion was erroneous, arbitrary, and unsupported by the evidence.

Another consideration is our Supreme Court’s unanimous holding in Commonwealth v. Brink’s, Inc., 346 Pa. 296, 301, 30 A.2d 128, 131 (1943), that “[i]t would be stretching the plain meaning of the word 'property’ to say that money, even when represented by currency, is not property: 34 Words and Phrases 480-484.” Thus, a carrier of monies, securities, and other valuables was determined to be transporting property for hire on the public highways. I am not persuaded by the majority’s suggestion that this persuasive authority is inapplicable because the Court’s inquiry here relates only to what services were contemplated at the time the original certificate was granted.

A third consideration is the case found to be controlling by the majority, Ferry, supra. In that case, the Superior Court affirmed a PUC determination that an applicant, who had stipulated that the word “property” in his certificate should be limited to building supplies, did not have authority to transport petroleum products. By way of dictum, the Court expressed a fear of chaos in the transportation industry, should the term “property” be used in its generic sense. Initially, I question the applicability of Ferry to the facts of the instant case. Further, I fail to recognize how affirming the PUC’s interpretation regarding a single “property” hauler, who requested authority to haul “near everything” and was granted authority in a limited geographical area, will lead to general chaos. Surely, the peculiar facts in this case will not support such a broad precedential effect. If chaos is to be visited upon the transportation industry, the majority’s assault on the PUC’s proficiency in reliably interpreting its own orders will, in my view, be a more significant factor for such a result than using the term “property” in its generic sense.

*187Because there is evidence to support a conclusion that the hauling of all property was originally contemplated and case law holding that property includes money, I would hold that PUC’s construction of its order is not clearly erroneous, arbitrary, and unsupported by the evidence, even in the face of dictum from an inapposite case.

I would thus affirm the PUC’s order.

Appellants, Purolator Security, Inc., and Brink’s Incorporated, have authority to transport monies, securities, and other valuables between any points in Pennsylvania.