PENNSYLVANIA

PUBLIC UTILITY COMMISSION

Harrisburg, PA 17105-3265

Public Meeting held May 19, 2016
Commissioners Present:
Gladys M. Brown, Chairman
Andrew G. Place, Vice Chairman
John F. Coleman, Jr.
Robert F. Powelson
Ronald Cab, Inc. t/a Community Cab
Dee Dee Cab, Inc. t/a Penn-Del Cab
Shawn Cab, Inc. t/d/b/a Delaware County Cab Co.
Sawink, Inc. t/d/b/a County Cab Co. / C-2010-2167828
M-2013-2381012
v.
Oged, Inc.

OPINION AND ORDER

BY THE COMMISSION:

Before the Pennsylvania Public Utility Commission (Commission) for consideration and disposition are the Exceptions filed by Ronald Cab, Inc. t/a Community Cab, Dee Dee Cab, Inc. t/a Penn-Del Cab, Shawn Cab, Inc. t/d/b/a Delaware County Cab Co., and Sawink, Inc. t/d/b/a County Cab Co. (Complainants) on November 24, 2015, in response to the Initial Decision on Remand (I.D. or Initial Decision on Remand) of Administrative Law Judge (ALJ) Cynthia Williams Fordham, issued November 4, 2015. Oged, Inc. (Respondent or Oged) filed Replies to Exceptions on December 4, 2015. For the reasons stated below, we will grant the Complainants’ Exceptions, in part, and modify the ALJ’s Initial Decision on Remand, consistent with this Opinion and Order.

History of the Proceeding

The Complainant Ronald Cab, Inc. t/a Community Cab is a public utility holding a Certificate of Public Convenience (Certificate) that authorizes it to transport as a common carrier, persons upon call or demand:

1) at the 69th Street terminal located in the township of Upper Darby, Delaware County;

(2) at the SEPTA terminal at 9th and Main Streets, in the borough of Darby, Delaware County; and

(3) in the boroughs of East Lansdowne and Yeadon, and that portion of Upper Darby Township south of and including Marshall Road and east of Union Avenue and Wycombe Avenue, north of the Eden Borough line and west of Cobbs Creek Parkway, Delaware County.

The Complainant Shawn Cab, Inc. t/d/b/a Delaware County Cab Co. is a public utility holding a Certificate that authorizes it to transport, as a common carrier, persons upon call or demand, in the townships of Upper Providence, Springfield, Ridley, Nether Providence, Middletown, Edgemont, and Aston, and the boroughs of Chester Heights, Brook Haven, Media, Morton, Ridley Park, Rose Valley, Swarthmore, Rutledge and Glenolden, all in the county of Delaware.

The Complainant Sawink, Inc. t/d/b/a County Cab Co. is a public utility holding a Certificate that authorizes it to transport, as a common carrier, by motor vehicle, persons upon call or demand, in the county of Delaware, excluding the townships of Radnor, Marple, Upper Providence and Newtown.

The Complainant Dee Dee Cab, Inc. t/a Penn-Del Cab is a public utility holding a Certificate that authorizes it to transport, as a common carrier, persons upon call or demand:

(1) between points in the borough of Lansdowne, Delaware County;

(2) in that portion of the township of Upper Darby, Delaware County, west of and including Lansdowne Avenue;

(3) at the 69th Street Terminal in the township of Upper Darby, Delaware County; and

(4) within that area of the City of Philadelphia bounded on the north by Lancaster Avenue, on the east by 56th Street, on the south by Grays Avenue (Grays Ferry Avenue), and on the west by the city limits.

Initial Decision of ALJ Ky Van Nguyen, Docket No. C-2010-2167828 (issued January 25, 2012) (January 2012 Initial Decision), Findings of Fact Nos. 1-4.

Oged is a public utility holding a Certificate that authorizes it to transport, as a common carrier, persons, upon call or demand:

in the city and county of Philadelphia and that area bounded by a line beginning on the north of the Delaware River at the Philadelphia county line, thence northwardly, westwardly, and southwestwardly along the Philadelphia county line to Philmont Avenue, thence southwestwardly along Philmont Avenue, Welsh Road, Valley Road, Washington Lane, Township Line to Glenside Avenue (excluding any portion of the borough of Jenkintown), Easton Road, Church Road, and Paper Mill Road to the Philadelphia County line and Blue Bell Road to Joshua Road, thence southwestwardly along Joshua Road to Cedar Grove Road, thence southeastwardly along Cedar Grove Road and the Schuylkill River joining the Philadelphia County line and continuing to Port Royal Avenue, thence across the Schuylkill River to Mill Creek Road, Montgomery County, thence southwestwardly along Mill Creek Road, Lancaster Avenue, Ardmore Avenue into Delaware County, and continuing along Ardmore Avenue into Delaware County, and continuing along Ardmore Avenue, Ellis Road, Lawrence Road and State Road, thence southwardly along State Road, Springfield Avenue, Saxer Boulevard, thence northeastwardly along Winona Avenue continuing in a straight line to the Delaware River, and thence northwardly along the Delaware River to the place of beginning; and persons upon call or demand in the boroughs of Norwood, Prospect Park, Ridley Park and Rose Valley, the townships of Ridley, Tinicum, Nether Providence, the village of Moylan and including Lester and Essington, all in Delaware County.

The Respondent’s Certificate contained vehicle limitations, as will be discussed further herein. Respondent’s Exhs. 1, 2, and 4.[1] The Parties in this case are partial-rights taxicabs.[2]

On March 31, 2010, the Complainants filed a Complaint against the Respondent alleging that their service territories outside the City of Philadelphia (City) overlap that of the Respondent. The Parties have Certificates authorizing them to provide taxicab service at the 69th Street terminal located in Upper Darby, Delaware County, a territory outside of the City. The Complainants alleged that the Respondent abandoned its operation in this territory, failed to report revenue to the Commission, and transferred its operating authority without the Commission’s approval, all in violation of the Public Utility Code (Code) and the Commission’s Regulations.

On April 26, 2010, the Respondent filed an Answer denying any wrongdoing and stated that it has been operating within the territory authorized by the Commission.

A hearing was held on October 4, 2011. The Complainants were represented by counsel, who presented the testimony of one witness and four exhibits which were admitted into the record. The Respondent was represented by counsel who presented the testimony of one witness. The hearing generated a transcript of seventy-five pages.

The Complainants filed their Main Brief on November 15, 2011, and the Respondent filed its Reply Brief on December 16, 2011. The record closed on December 16, 2011.

In the January 2012 Initial Decision, ALJ Ky Van Nguyen recommended, inter alia, that the Complaint be sustained, in part. I.D. at 14.

The Parties filed Exceptions and Replies to Exceptions. On March 29, 2012, the Commission entered an Opinion and Order (March 2012 Order) denying the Complainants’ Exceptions, granting the Respondent’s Exceptions, in part, modifying the Initial Decision, and dismissing the Complaint.

The Complainants appealed the Commission’s decision to the Commonwealth Court of Pennsylvania. On July 12, 2013, the Commonwealth Court issued an Opinion and Order, Ronald Cab, Inc., t/a Community Cab v. Pa. PUC, 76 A.3d 74 (Pa. Cmwlth. 2013). The Court vacated the March 2012 Order and remanded the matter to the Commission for further proceedings. The Court requested that the Commission review issues related to the bifurcation of Oged’s authority when the regulation of Philadelphia taxicabs and limousines was transferred from the Commission to the Philadelphia Parking Authority (PPA or Authority) and its effect upon Oged’s present authority. The matter on remand was assigned to ALJ Fordham.

The Commission issued a Secretarial letter on November 5, 2013 (November 2013 Secretarial Letter), explaining the issue on remand as follows:

The issue on remand involves the effect Act 94 of 2004 had on OGED Inc.’s ability to provide taxicab service both within Philadelphia and outside Philadelphia and, inter alia, whether Act 94[3] bifurcated OGED’s original Commission issued certificate of public convenience into two certificates, one issued by the Commission and one by the [PPA], whether OGED is a medallion company subject only to regulation by the [PPA] but with the ability to have a service area outside Philadelphia, and whether a separate or amended certificate of public convenience issued by the Commission is required by medallion taxis to provide service wholly outside of Philadelphia.

November 2013 Secretarial Letter at 1.

The Secretarial letter also stated that when Act 94 was enacted in 2004, extra-Philadelphia rights were associated with 800 medallions, similar to Oged. Since that time, numerous carriers voluntarily discontinued their authority to provide service outside of Philadelphia. However, a significant number of carriers may still hold both medallion authority and authority to provide service outside of Philadelphia. In light of the medallion carriers’ potential interest in this proceeding, the Secretarial Letter was sent to them to allow them to intervene. Id.

On December 5, 2013, the following companies filed a Notice of Intervention: A D Cab Co., FAD Trans Inc., Grace Trans Inc., LAN Trans Inc., MAF Trans Inc., RAV Trans Inc., and SAJ Trans Inc. (Intervenors).

A prehearing conference was held on March 27, 2014. During the prehearing conference, counsel for the Intervenors stated the companies that filed Notices to Intervene were not interested in participating in this matter. Tr. at 8, 9.[4] By letter dated April 24, 2014, counsel requested that the Notices to Intervene be withdrawn. By Prehearing Order on Remand dated August 1, 2014, the Intervenors’ requests to withdraw were granted.

The hearing on remand was held on February 26, 2015. The Complainants were represented by counsel who presented one exhibit that was admitted into the record. Oged was represented by counsel who presented the testimony of one witness, who sponsored four exhibits that were admitted into evidence.

Consistent with the Order on Remand dated March 24, 2015, the Respondent’s counsel submitted three late-filed exhibits, which were admitted into the record without objection by Order on Remand dated June 15, 2015.

The Parties filed Main Briefs on July 24, 2015. The Respondent filed a Reply Brief on August 7, 2015.

The record on remand consists of the original record, an eighty-nine page transcript of the proceedings on remand, eight exhibits on remand, and the Parties’ Briefs. The record closed on August 7, 2015.

In the Initial Decision on Remand, issued November 4, 2015, ALJ Fordham dismissed the Complaint. As previously stated, the Complainants filed Exceptions on November 24, 2015. The Respondent filed Replies to Exceptions on December 4, 2015.

Discussion

Legal Standards

As the proponent of a rule or order, the Complainants in this proceeding bear the burden of proof pursuant to Section332(a) of the Code. 66 Pa. C.S. § 332(a). To establish a sufficient case and satisfy the burden of proof, the Complainants must show that the Respondent is responsible or accountable for the problem described in the Complaint. Patterson v. The Bell Telephone Company of Pennsylvania, 72 Pa. P.U.C. 196 (1990). Such a showing must be by a preponderance of the evidence. SamuelJ. Lansberry, Inc.v. Pa. PUC, 578A.2d 600 (Pa. Cmwlth. 1990), alloc. denied, 529 Pa. 654, 602 A.2d 863 (1992). That is, the Complainants’ evidence must be more convincing, by even the smallest amount, than that presented by the Respondent. Se-Ling Hosiery, Inc. v. Margulies, 364 Pa. 45, 70 A.2d 854 (1950). Additionally, this Commission’s decision must be supported by substantial evidence in the record. More is required than a mere trace of evidence or a suspicion of the existence of a fact sought to be established. Norfolk & Western Ry. Co. v. Pa. PUC, 489 Pa. 109, 413 A.2d 1037 (1980).

Upon the presentation by the Complainants of evidence sufficient to initially satisfy the burden of proof, the burden of going forward with the evidence to rebut the evidence of the Complainants shifts to the Respondent. If the evidence presented by the Respondent is of co-equal value or “weight,” the burden of proof has not been satisfied. The Complainants now have to provide some additional evidence to rebut that of the Respondent. Burleson v. Pa. PUC, 443 A.2d 1373 (Pa. Cmwlth. 1982), aff’d, 501 Pa. 433, 461 A.2d 1234 (1983). While the burden of going forward with the evidence may shift back and forth during a proceeding, the burden of proof never shifts. The burden of proof always remains on the party seeking affirmative relief from the Commission. Milkie v. Pa. PUC, 768 A.2d 1217 (Pa. Cmwlth. 2001).

In the Initial Decision on Remand, ALJ Fordham made twenty-eight Findings of Fact and reached five Conclusions of Law. I.D. at9-12, 18. We shall adopt and incorporate herein by reference the ALJ’s Findings of Fact and Conclusions of Law unless they are either expressly or by necessary implication overruled or modified by this Opinion and Order.

Before addressing the Exceptions, we note that any issue or Exception that we do not specifically address shall be deemed to have been duly considered and denied without further discussion. It is well settled that we are not required to consider, expressly or at length, each contention or argument raised by the parties. Consolidated Rail Corp. v. Pa. PUC, 625 A.2d 741 (Pa. Cmwlth. 1993); also see, generally, University of Pennsylvaniav. Pa. PUC, 485 A.2d 1217 (Pa. Cmwlth. 1984).

Positions of the Parties