PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held April 27, 2000
Commissioners Present:
John M. Quain, Chairman
Robert K. Bloom, Vice Chairman
Nora Mead Brownell
Aaron Wilson, Jr.
Terrance J. Fitzpatrick
Pennsylvania Public Utility Commission, Bureau of Transportation and Safety / A-00113098C9701
v.
Rosemarie Metz-Brungard and Steven Roger Brungard, t/a Protean Potentials
Pennsylvania Public Utility Commission, Bureau of Transportation and Safety / A-00113098
C9702
v.
Rosemarie Metz-Brungard and Steven Roger Brungard, t/a Protean Potentials
OPINION AND ORDER
BY THE COMMISSION:
Before the Commission for consideration are the Exceptions of RosemarieMetz-Brungard and StevenRoger Brungard, t/a Protean Potentials (Carrier), filed on June2, 1999, to the Initial Decision of Administrative Law Judge(ALJ) WayneL. Weismandel, issued on May17, 1999, in the above-captioned proceeding. On June11, 1999, the Commission’s Bureau of Transportation and Safety(BTS) filed Reply Exceptions. These matters were held in abeyance pending disposition of a United States District Court action commenced on the Carrier against the Commission. On March23, 2000, the Federal action was dismissed.
History of the Proceedings
On May29, 1996, the Carrier applied for authority to transport persons in airport transfer service in selected counties within the Commonwealth. This Commission approved the Application, as amended, consistent with certain stipulations among the Carrier and various Protestants. A Compliance Order was entered on August26, 1997, and the Certificate of Public Convenience was issued on September11, 1997.
On October 27, 1997, the BTS filed a Formal Complaint against the Carrier at Docket No.A00113098, C9701 (C9701 Complaint). The C9701 Complaint alleged that, on August 27, 1997, the Carrier rendered unauthorized transportation service for $40.00 compensation from the Harrisburg International Airport (HIA), Lower Swatara Township, Dauphin County, to Marietta, Lancaster County, in violation of the Public Utility Code (Code), 66Pa. C.S.§1101 or §2503. On November 4, 1997, the BTS filed a second Formal Complaint against the Carrier at Docket No.A00113098, C9702 (C9702 Complaint). The C9702 Complaint alleged that, on September2, 1997, the Carrier rendered unauthorized transportation service for $55.00 compensation from the HIA to York, also constituting a violation of Section 1101.
The C9701 andC9702 Complaints were referred to the Office of Administrative Law Judge (OALJ). On January29, 1999, ALJ Weismandel, inter alia, consolidated both Complaints, granted the Carrier twenty(20) days to file and serve new Answers to the Complaints, and granted the BTS twenty(20) days thereafter to renew two(2) earlier Motions. On February4, 1999, the Carrier filed a “response” (Answer) to the C9701 andC9702 Complaints.[1] The Answer essentially requested that the BTS bring its Complaints before the “appropriate Federal authorities.”
On February16, 1999, the BTS filed a Motion for Judgment on the Pleadings[2] (JOP Motion). The BTS’ JOP Motion asserted that, under Section5.61(c) of the Commission’s Regulations, 52Pa. Code§5.61(c), the Carrier’s Answer may be deemed to admit the relevant facts stated in the Complaints. The Carrier did not respond to the JOP Motion. On March 9, 1999, the ALJ denied the BTS’ JOP Motion, finding that it could not be determined that no material facts remained in dispute.
On April 13, 1999, the BTS filed a Motion for Summary Judgment (Summary Judgment Motion). The Carrier did not respond to the Summary Judgment Motion. On April15, 1999, the Parties filed a Stipulation of Facts (Stipulation of Facts). On May 15, 1999, ALJ Weismandel’s Initial Decision was issued, wherein he granted the BTS’ unopposed Summary Judgment Motion, sustained the C9701 andC9702 Complaints, and imposed a $1,250.00 civil penalty. As noted, the Carrier filed its Exceptions, and the BTS filed Reply Exceptions.
Prior to beginning the analysis of the Exceptions at hand, we believe it is illuminating to expand our review of this Carrier’s brief history to note three(3) other significant proceeding involving this Carrier. Two(2) are Commission proceedings; one(1) is a federal proceeding.[3]
On September12, 1996, the BTS filed a Formal Complaint at Docket No.A-00113098, C9601 (C9601 Complaint), against the Carrier, alleging that the Carrier advertised itself as available for intrastate transportation, and, on two(2) occasions, transported persons in intrastate travel without Commission authority. The BTS sought a $3,250.00 civil penalty. The Carrier alleged a “good faith” reliance upon a lease agreement with another jurisdictional carrier in defense of its actions. By Commission Order entered on June9, 1998, the C9601Complaint was sustained, and a reduced civil penalty of $1,000.00 was imposed. The Carrier did not directly challenge the June9, 1998 Order.
On March1, 1999, the BTS filed a Formal Complaint at Docket No.A00113098, C9901 (C9901 Complaint), against the Carrier, alleging failure to pay the $1,000.00 civil penalty in the C9601 Complaint and seeking revocation of the Certificate of Public Convenience. On March8, 1999, the Carrier answered the C9901 Complaint by collaterally attacking the June9, 1998 Order in the C9601 Complaint proceeding. By Secretarial Letter issued on April14, 1999, the C9901 Complaint was deemed admitted and was sustained. The Carrier’s Certificate of Public Convenience was
revoked, and its authority was canceled. There have been no requests for reinstatement of the Certificate nor reconsideration of the Secretarial Letter. On June11, 1999, the C9601/C9901 matter was referred to the Office of Attorney General for collection of the unpaid civil penalty.
The Carrier then commenced Brungard et al.v. PaPUC, No.1:99CV0662, USDC, Middle District of PA, asserting, inter alia, a civil rights action alleging violations of the Commerce Clause and the Eighth and Fourteenth Amendments by the Commission. The Carrier, as Plaintiff therein, sought relief under 42U.S.C. §1983. The federal matter was dismissed on March23, 2000, as barred by the Eleventh Amendment to the United States Constitution.
Discussion[4]
The ALJ made twelve(12) Findings of Fact (R.D., pp.7-8) and drew five(5) Conclusions of Law (I.D., pp.12-13). We shall incorporate the ALJ’s Findings and Conclusions as if set forth fully herein to the extent that they are consistent with this Opinion and Order and not expressly or by necessary implication rejected herein.
Relying upon long-standing Commission precedent, the ALJ rejected the Carrier’s contention that the trips in question were transportation in interstate commerce. Citing Pa. PUCv. Grove City Bus Lines, Inc., 51Pa. P.U.C.438 (1977), Pa. PUCv. Nelson, 67Pa. P.U.C. 476 (1988), and Pa PUC v. Limelight Limousine, Inc., 73Pa. P.U.C. 180 (1990) (Limelight), the ALJ noted that “[t]ransportation between two points in a single state cannot be deemed an integral component or continuation of an interstate trip unless the evidence of record reveals the presence of a “special arrangement” which renders the in-state transportation a necessary constituent of the passenger's continuous interstate transportation.” (I.D., p.10).
Specifically, in C9701, the ALJ concluded that the Carrier had violated Section1101 of the Code and imposed a civil penalty of $500.00. (I.D., p.11). In C9702, the ALJ concluded that the Carrier had again violated Section1101 of the Code and imposed a civil penalty of $750.00. (I.D., p.11).
Turning to the Exceptions, we note that the Carrier, throughout this proceeding, has maintained that it is a certificated motor carrier of passengers in interstate commerce and that the challenged trips in the C9701 and C9702 Complaints were interstate in nature, not subject to Commission jurisdiction. In its Exceptions, the Carrier raises three(3) arguments.
First, the Carrier argues that federal law does not require special arrangements such as through ticketing or contractual arrangements or other indicia of joint arrangements between a carrier providing the intrastate transportation and the carrier which actually transports the passenger across the state boundary. Federal law looks to the intent of the passenger and the “shipper”[5] to determine whether the transportation is interstate or intrastate.
Second, the Carrier asserts that transportation of passengers arriving at the HIA from out of state to a destination within twenty-five(25) miles of the HIA is part of the interstate trip and not subject to Commission jurisdiction.
Third, the Carrier asserts that 99% percent of its transportation originates or terminates at airports, occurs immediately prior to or subsequent to aircraft transportation, and is integral to interstate or international journey or transport. The Carrier asserts that it has a “special arrangement” with every air carrier serving the HIA, along with all other carriers at HIA, whereby “all share th[e] terminal facility . . . and earn a share of the costs of operating th[e] facility for use by the public in interstate and international commerce.” The other 1% of the Carrier’s business is at “other terminals under less formal terms, but still at terminals (such as seaports, train and bus terminals) which are shared with other interstate carriers, in the conduct of interstate commerce.”
The Exceptions conclude with the request that all challenges to the Carrier’s ability to do business be quashed and that the nature of the Carrier’s services be recognized as interstate in character.
The BTS, in its Reply Exceptions, refers, without further argument, to the Complaints, the JOP Motions, and the Summary Judgment Motion. The BTS summarily submits that the Exceptions are without merit and that the Initial Decision followed applicable law.
The question thus presented is whether this Carrier was engaged in intrastate or interstate transportation with respect to the challenged operations. The seminal federal case in this area of law is USv. Yellow Cab Co., et al., 332US218, 231232, 67 S. Ct. 1560 (1947) (Yellow), which provided that:
[T]he common understanding is that a traveler intending to make an interstate rail journey begins his interstate movement when he boards the train at the station and that his journey ends when he disembarks at the station in the city of destination. What happens prior or subsequent to that rail journey, at least in the absence of some special arrangement, is not a constituent part of the interstate movement. . . . From the standpoints of time and continuity, the taxicab trip may be quite distinct and separate from the interstate journey. To the taxicab driver, it is just another fare.
Based upon our reading of Yellow, supra, and the Commission cases cited by the ALJ, intrastate transportation cannot and will not be deemed to be an integral component or continuation of an interstate trip:
1. In the absence of a contractual arrangement with the interstate carrier.
2. If the in-state transportation is not pre-paid as part of the interstate transportation carrier’s fare.
3. If there are alternative forms of transportation available from which the passenger is free to choose for the intrastate component of the travel to or from the airport, train terminal, or bus terminal.
4. If the passenger contracted for and paid for the in-state transportation independently of any arrangement for interstate transportation.
The Stipulation of Facts conclusively established that the contested transportation was wholly within the Commonwealth (Stip. of Facts, ¶2); that the Carrier had no contractual arrangement or relationship with an air carrier relative to the transportation of passengers (Stip. of Facts, ¶2); that through tickets were not used (Stip. of Facts, ¶2); that the contested transportation was obtained through advertisements placed in the Yellow Pages or on the Internet (Stip. of Facts, ¶3); and that the passengers arranged the transportation with the Carrier and paid the Carrier directly (Stip. of Facts, ¶44). Thus, there was no “special arrangement” rendering the in-state transportation a necessary constituent of the passengers’ continuous interstate transportation. The transportation rendered for compensation by the Carrier was clearly not transportation in interstate commerce but rather was intrastate transportation subject to the Commission’s jurisdiction.
In light of the foregoing, we agree with the ALJ. The Stipulation of Facts conclusively established that there were no genuine issues of material fact. The matter was ripe for summary disposition, and the BTS was entitled to judgment as a matter of law.
In moving forward in time from Yellow, supra, the passage of fifty-two(52) years and the status of air travel, as opposed to rail travel, as the public transportation modality of choice do not negate the logic the Supreme Court has articulated in Yellow. Further, we note that the United States District Court for the Middle District of Pennsylvania has found no grounds upon which to exert federal jurisdiction over similar questions of fact and law related to the Carrier’s C9601 and C9901 Complaints. The Court found, indeed, that that matter was one of state jurisdiction under the Eleventh Amendment. Brungard, et al.v. Pa. P.U.C., Civil Action No.1:CV99662 (March27, 2000).
Accordingly, the Exceptions are denied.
Conclusion
We shall deny the Exceptions and affirm the Initial Decision. The C9701 and C9702 Complaints are sustained. The cancellation of the Carrier’s authority does not negate the Carrier’s obligation to pay the civil penalty herein. The civil penalty of $1,250.00 is due and payable within twenty(20) days of the date of entry of this Opinion and Order; THEREFORE,
IT IS ORDERED:
1. That the Exceptions of Rosemarie Metz-Brungard and Steven Roger Brungard, t/a Protean Potentials, filed on June 2, 1999, are denied.
2. That the Initial Decision of Administrative Law WayneL. Weismandel, issued on May 17, 1999, is affirmed, consistent with this Opinion and Order.
3. That the Complaints at Docket Nos.A00113098, C9701, and A00113098, C9702, are sustained.
4. That Rosemarie Metz-Brungard and Steven Roger Brungard, t/a Protean Potentials, shall pay a civil penalty of $500.00 for the violation at Docket No.A00113098, C9701, and that Rosemarie Metz-Brungard and Steven Roger Brungard, t/a Protean Potentials, shall pay a civil penalty of $750.00 for the violation at Docket No.A00113098, C9702, for a total civil penalty of $1,250.00, as provided for in the Public Utility Code, 66Pa. C.S. §3301, by certified check or money order, within twenty(20) days after service of this Opinion and Order and forwarded to:
Pennsylvania Public Utility Commission
P.O. Box 3265
Harrisburg, PA 17105-3265
5. That Rosemarie Metz-Brungard and Steven Roger Brungard, t/a Protean Potentials, cease and desist from further violations of the Public Utility Code and the Public Utility Commission’s regulations.
6. That a copy of this Opinion and Order be served upon the following:
Pennsylvania Department of Revenue
Bureau of Audit Programs, Sales & Use Taxes
10th Floor, Strawberry Square
Harrisburg, PA 17128-1061
Pennsylvania Department of Transportation
Bureau of Motor Vehicle, Financial Responsibility