Union Transfer & Storage Co. v. Lefeber

Judge Walker

dissenting.

I respectfully dissent from the majority opinion holding the Commission erred in granting petitioner’s application. The appel*289lants-intervenors are existing carriers seeking to prevent the petitioner from obtaining common carrier authority to transport Group 18-A household goods throughout the State.

The majority cites to the three requirements an applicant must prove to the satisfaction of the Commission pursuant to N.C. Gen. Stat. § 62-262(e). The only one of the three at issue here is the following:

(1) That public convenience and necessity require the proposed service in addition to existing authorized transportation service.

N.C. Gen. Stat. § 62-262(e) (1999).

In reviewing a decision of the Utilities Commission, this Court’s role is to determine whether the entire record supports the Commission’s decision; and where there are two reasonably conflicting views of the evidence, this Court may not substitute its judgment for that of the Commission. See State ex rel. Util. Comm’n v. Carolina Indus. Group, 130 N.C. App. 636, 639, 503 S.E.2d 697, 699-700, disc. review denied, 349 N.C. 377, 525 S.E.2d 465 (1998). The determination is whether the Utilities Commission’s findings and conclusion are supported by substantial, competent, and material evidence. See State ex rel. Utilities Comm’n v. N.C. Gas Service, 128 N.C. App. 288, 291, 494 S.E.2d 621, 624 (1998). Substantial evidence is defined as “more than a scintilla or a permissible inference,” and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Utilities Comm. v. Coach Co., 19 N.C. App. 597, 601, 199 S.E.2d 731, 733 (1973), cert. denied, 284 N.C. 623, 201 S.E.2d 693 (1974). In determining whether a petitioner has presented substantial evidence in support of his position, our Supreme Court has stated the Commission may agree with the evidence of a single witness even though there may be opposing witnesses. See State ex rel. Utilities Comm. v. Eddleman, 320 N.C. 344, 352, 358 S.E.2d 339, 346 (1987) (stating “the Commission may agree with a single witness — if the evidence supports his position — no matter how many opposing witnesses might come forward”).

In Utilities Comm. v. Coach Co. and Utilities Comm. v. Greyhound Corp., 260 N.C. 43, 132 S.E.2d 249 (1963), cited by the majority, our Supreme Court addressed the issue of public convenience and necessity and stated:

Whether there shall be competition in any given field and to what extent is largely a matter of policy committed to the sound judg*290ment and discretion of the Commission. The Commission must maintain a reasonable balance to see that the public is adequately served and at the same time to see that the public and the public utilities involved are not prejudiced by the efforts which flow from excessive competition brought about by excessive services.

Id. at 51, 132 S.E.2d at 254-55 (citation omitted). Additionally, our Supreme Court held that “the facts in each case must be separately considered and from those facts it must be determined whether public convenience and necessity requires [sic] a given service to be performed or dispensed with.” Id. at 52, 132 S.E.2d at 255. Furthermore, our Supreme Court stated:

Upon the same facts we might have reached a different result. But it is not for this Court to find the facts or to regulate utilities. “The decisions of the Utilities Commission must be within the authority conferred by the Act, yet the weighing of the evidence and the exercise of judgment thereon as to transportation problems within the scope of its powers are matters for the Commission.”

Id. at 54, 132 S.E.2d at 257 (citations omitted).

Here, the entire record reveals that the Commission’s findings are supported by “such relevant evidence as a reasonable mind might accept as adequate” to support its conclusion that petitioner met his burden. Coach Co., 19 N.C. App. at 601, 199 S.E.2d at 733.