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

COCHRAN, J.,

dissenting

The Restricted Parcel Carriers Act, like the Household Goods Carriers Act and the Petroleum Tank Truck Carriers Act, contains no express provision protecting existing carriers. Blanton’s Delivery v. Pony Express, 219 Va. 280, 286, 247 S.E.2d 397, 400 (1978). Therefore, it is a liberal statute and should be so construed. Id. at 284-85, 247 S.E.2d at 399-400. In my view, a liberal construction would effectuate the legislative intent of promoting competition and encouraging the exercise of ingenuity by carriers of this category so that the public would benefit from improved service. The opinion of the majority, however, based upon a narrow construction of the statute, merely protects the competitive positions of carriers already certificated by the Commission.

The Commission’s findings of fact are binding unless contrary to the evidence or without evidence to support them. Blanton’s Delivery, 219 Va. at 283, 247 S.E.2d at 398. The majority finds the Commission’s determination that TCD met the territorial service requirement is contrary to the evidence. I disagree. There was evidence that TCD was willing and able to meet any requests for service at any geographic location in Virginia.

The statute requires a restricted parcel carrier to “provide service from and to all locations in the area authorized to be served.” Code § 56-338.77. The majority appears to read into this provision and Code § 56-338.65(e)(4) a requirement that every service provided by the carrier must be extended to all locations. I find no justification for such a requirement.

*577TCD presented evidence that it would serve all geographic locations with two types of service, i.e., regular handling and critical handling. TCD should not be disqualified merely because an intermediate level of service, priority handling, would not be offered in all locations. Priority handling required pickup service in 4-6 hours. The Commission may well have concluded that no such schedule could reasonably be met in serving customers located far from metropolitan centers. There was evidence to support the Commission’s ruling that TCD satisfied the territorial service requirement.

The Commission properly ruled that TCD’s application was justified by public convenience and necessity, based upon its finding that the service provided was new and innovative. Thus, in Blanton’s Delivery we held that public convenience and necessity was presumed from emergence of a new, innovative competitor absent a showing that certification of the applicant would result in ruinous competition. 219 Va. at 285-86, 247 S.E.2d at 400.

The majority notes the argument of Pony Express and Purolator that if we upheld 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.” This argument, while apparently persuasive to the majority, is fatally flawed. It ignores the requirement that the applicant must establish to the satisfaction of the Commission his abililty to provide the service. In the present case, the applicant has demonstrated the ability to serve a limited territory. The Commission was justified in concluding, based on the applicant’s successful experience in a limited operation, that a successful operation on a larger scale could be anticipated.

That the public interest would be served by innovative methods introduced by an enterprising and imaginative carrier cannot be denied. To require such an applicant to enlarge its territory only through multiple applications as its successful operation progresses is to discourage ingenuity and ambition by erecting costly and time-consuming barriers that are not in the public interest. I would affirm the Commission’s order.

RUSSELL, J., joins in dissent.