No. MC-117574 (SUB-NO. 79)

DAILY EXPRESS, INC., EXTENSION-CARLISLE, PA.

Decided May 6, 1964

Public convenience and necessity found to require operation by applicant as a common carrier by motor vehicle, over irregular routes, of certain commodities requiring the use of special equipment, between Carlisle, Pa., on the one hand, and, on the other, the District of Columbia and points in 22 States, subject to restrictions. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied.

Edward G. Villalon for applicant.

Anthony N. Jacobs, William D. Traub, James J. Doherty, Robert M. Pearce, and Paul F. Sullivan for protestants.

REPORT OF THE COMMISSION

OPERATING RIGHTS REVIEW BOARD NUMBER 3, MEMBERS FREIDSON, MORRIS, AND MULHERN

BY THE BOARD:

Exceptions to the order recommended by the examiner were filed by applicant and protestant, U. S. A. C. Transport, Inc., hereinafter called USAC. Our conclusions differ somewhat from those recommended.

By application filed July 1, 1963, as amended, Daily Express, Inc., of Carlisle, Pa., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of the commodities, between the points, and in the manner described in the appendix hereto. At the hearing numerous motor carriers, other than USAC, withdrew their opposition upon amendment of the application to its present form. Subsequent to the hearing, by letter received February 20, 1964, USAC requested leave to withdraw its exceptions. This request will be granted.

The examiner recommended that the application be granted substantially as sought, except for points within 3 miles of Carlisle which are not required since applicant's terminal is located within the Carlisle commercial zone. However, the examiner also recommended that the instant proceeding be held open for further consideration of applicant's fitness pending final disposition of the investigation proceeding in No. MC-C-4063, Daily Express, Inc.-Investigation of Operations, wherein it is alleged that applicant is conducting certain operations beyond the scope of its authority. On exceptions applicant contends that it should be found to be fit upon the record herein, and that the pending investigation proceeding should not bar the issuance of a certificate herein. Applicant argues that the examiner recommended a grant of authority herein so that it could engage in safer operations to the benefit of the general public, but, in effect, has delayed the performance of such safer operations by holding the instant proceeding open until final determination of the investigation proceeding in No. MC-C-4063, which does not involve unsafe operations or safety violations by applicant. Accordingly, applicant proposes that the certificate be issued herein, subject to the condition that it will voluntarily surrender such certificate, if a finding of fitness adverse to applicant is made in No. MC-C-4063.

The evidence, the examiner's recommendation, and the exceptions have been considered. We find the examiner's statement

of facts to be correct and adequate in all material respects; and we adopt such statement as our own. In view of USAC's withdrawal of its exceptions, no exceptions are now taken to the examiner's finding that the public convenience and necessity require the proposed operations, which finding is adequately supported by the evidence and is adopted as our own. Certain facts will be repeated for clarity of discussion.

Applicant is authorized, as here pertinent, to transport the considered commodities between points in a specified area in the north-central portion of Pennsylvania, including Lewistown, on the one hand, and, on the other, the District of Columbia and points in 22 States here involved. Between June and September, 1963, applicant delivered to, or received from, connecting carriers at Lewistown 74 shipments of the considered commodities which traffic either originated at, or was destined to, points in the involved States. Applicant here proposes to shift its interchange point for such traffic from Lewistown to Carlisle, a

distance of approximately 55 miles. By interchanging the traffic at its principal terminal in Carlisle, applicant will be able to operate to a much greater extent over the Pennsylvania Turnpike and to that extent avoid operating over its existing highways in the mountainous region around Lewistown. Its existing highways have grades classified in some instances as hazardous by the Bureau of Traffic Safety of the Commonwealth of Pennsylvania. The proposed service would result in safer operations not only for applicant but also for the general public.

The application is supported by the Pennsylvania Bureau of Traffic Safety and the Pennsylvania Turnpike Commission. The turnpike is a divided four-lane highway, except through tunnels, having a maximum grade of 3 percent and maximum curves of 3 degrees. The Safety Bureau and Turnpike Commission contend that the involved traffic, consisting primarily of heavy commodities, could be more safely transported over the turnpike than over the other highways, comprised mainly of two lanes, presently used by applicant, and that the granting of the application would be in the interest of public safety.

The instant proceeding involves only the transfer of applicant's existing point of interchange with connecting carriers from Lewistown to Carlisle with respect to the considered traffic now being interchanged by applicant with such carriers at Lewistown. Applicant does not propose to institute a new service or, in effect, to perform any service different from its presently authorized service. The interchange at Carlisle will enable applicant to operate principally over the safer Pennsylvania Turnpike instead of transporting the heavy commodities here involved over narrow and mountainous highways presently used in conjunction with the interchange thereof at Lewistown. The evidence shows that the proposed operation would improve applicant's safety of operations, affording greater safety to the general public. We agree with the examiner that the safety feature involved warrants a grant of the authority sought to the extent described in the findings herein. Compare Axley Extension of Operations-Murphy, N. C., 30 M.C.C. 387, wherein it was found at pages 389 and 390:

We are convinced that the use of a more level route in lieu of one more mountainous is a legitimate operating economy which we should foster and encourage. This seems especially true when the use of the more level route would afford greater safety to the traveling public.

Considering the safety factors involved herein, and the fact that the foregoing investigation proceeding does not involve unsafe operations or safety violations by applicant, we conclude, despite such investigation proceeding, that applicant can properly be found in the instant proceeding to be fit, willing, and able properly to perform the proposed interchange service at Carlisle. Compare Riss & Co., Inc., Ext.-Alternate Route - Afton, Okla., 72 M.C.C. 711, 719. This finding is specifically limited to the instant proceeding, and shall not be construed to foreclose, in any manner, a contrary finding in any other pending proceeding. Applicant's acceptance of the certificate to be issued herein will be deemed to constitute agreement by it that the order entered in No. MC-C-4063 shall apply to this certificate and shall subject this certificate, as well as those already held, to possible suspension or revocation or to any other further order the Commission might subsequently enter in No. MC-C-4063.

We find that the present and future public convenience and necessity require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, over irregular routes, of (1) such commodities, as by reason of their size or weight, require the use of special equipment, between Carlisle, Pa., on the one hand, and, on the other, the District of Columbia and points in New York, New Jersey, Maryland, Virginia, Ohio, Delaware, and West Virginia; (2) such commodities, as by reason of their size or weight, require the use of special equipment, except machinery, equipment, materials, and supplies used in, or in connection with, the construction, operation, repair, servicing, maintenance, and dismantling of pipelines, between Carlisle, on the one hand, and, on the other, points in Indiana, Illinois, Kentucky, North Carolina, South Carolina, Maine, New Hampshire, Vermont, Georgia, Florida, Michigan, Minnesota, and Wisconsin; and (3) such commodities, as by reason of their size or weight, require the use of special equipment, except machinery, equipment, materials, and supplies used in, or in connection with, the construction, operation, repair, servicing, maintenance, and dismantling of pipelines, and except boilers, heaters and castings, between Carlisle, on the one hand, and, on the other, points in Connecticut and Massachusetts, restricted (a) to service at Carlisle, Pa., for the purpose of interchange of traffic only; (b) against the transportation of traffic originating at or destined to Carlisle, Pa.; and (c) against the tacking, joining, or combining, directly or indirectly, of the authorities granted herein in (1), (2), and (3) above with each other or with any other authority held by applicant.

223-631 O-67-9

We further find on the record in this proceeding, and without prejudice to any other or different conclusions which may be reached in the above-mentioned proceeding in No. MC-C-4063 that applicant is fit, willing, and able properly to perform the particular operations authorized herein and to conform to the requirements of the Interstate Commerce Act and the Commission's rules and regulations thereunder; that a certificate authorizing such operations should be granted; and that the application in all other respects should be denied.

Upon compliance by applicant with the requirements of sections 215, 217, and 221(c) of the act and with the Commission's rules and regulations thereunder, within the time specified in the order entered concurrently herein, an appropriate certificate will be issued. An appropriate order will be entered.

APPENDIX

Authority sought in application, as amended

Irregular routes:

(1) Such commodities, as by reason of their size or weight, require the use of special equipment, between Carlisle, Pa., and points within 3 miles thereof, on the one hand, and, on the other, points in New York, New Jersey, Maryland, Virginia, Ohio, Delaware, West Virginia, and the District of Columbia, (2) such commodities, as by reason of their size or weight, require the use of special equipment (except machinery, equipment, materials, and supplies used in, or in connection with, the construction, operation, repair, servicing, maintenance, and dismantling of pipelines), between Carlisle, Pa., and points within 3 miles thereof, on the one hand, and, on the other, points in Indiana, Illinois, Kentucky, North Carolina, South Carolina, Maine, New Hampshire, Vermont, Georgia, Florida, Michigan, Minnesota, and Wisconsin, and (3) such commodities, as by reason of their size or weight, require the use of special equipment (except machinery, equipment, materials, and supplies used in, or in connection with, the construction, operation, repair, servicing, maintenance, and dismantling of pipelines, except boilers, heaters and castings), between Carlisle, Pa., and points within 3 miles thereof, on the one hand, and, on the other, points in Connecticut and Massachusetts, restricted to traffic moving in interchange service with other heavy, specialized carriers under the Red Book or other interchange plans, and restricted against tacking of (1), (2), and (3) above to each other or to other rights now held by applicant; and further restricted against traffic originating at or destined to Carlisle, Pa., and points within 3 miles thereof,

95 M.C.C.