NOTICES

Opinion and Order

[32 Pa.B. 3449]

Public Meeting held
May 9, 2002

Commissioners Present: Glen R. Thomas, Chairman; Robert K. Bloom, Vice Chairman; Aaron Wilson, Jr.; Terrance J. Fitzpatrick; and Kim Pizzingrilli

Application of Penny Saver Direct, Inc. t/d/b/a Two Guys & A Truck, for the right to begin to transport, as a common carrier, by motor vehicle, household goods in use, between points in the Counties of Erie and Crawford, and from points in said counties, to points in Pennsylvania, and vice versa; A-00116710

Opinion and Order

By the Commission:

   Before the Commission for consideration is the Petition for Declaratory Order (Petition) filed on January 14, 2002, by Penny Saver Direct, Inc., t/d/b/a Two Guys & A Truck (Petitioner). The Petitioner requests that we issue an Order finding that its current operations do not constitute a public utility service subject to the Commission's jurisdiction.

   By Secretarial Letter dated February 8, 2002, the Petitioner was directed to serve a copy of its Petition on the interested Parties. The Petition was thereafter served on the parties on February 14, 2002, in accordance with 52 Pa. Code § 5.45(b). B.F. Fields Moving & Storage, J.H. Bennett Storage & Carting, Inc., and Piper Moving Systems, Inc., (Protestants) filed a response to the Petition and New Matter on March 5, 2002. On March 20, 2002, the Petitioner filed an Answer to the Protestants' New Matter.

History of Proceeding

   On March 20, 2000, the Petitioner filed an Application for a Certificate of Public Convenience requesting authority to transport household goods in use. An evidentiary hearing was held on September 8, 2000, culminating in the issuance of an Initial Decision on March 15, 2001, denying the Application. The Petitioner filed Exceptions to the Initial Decision on April 2, 2001. The Protestants and Ryan Moving & Storage, Inc., filed Reply Exceptions on April 16, 2001.

   By Opinion and Order entered September 7, 2001, we denied the Petitioner's Exceptions. In that Order, we concluded, inter alia, that the Petitioner had a propensity to operate illegally, as evidenced by the fact that it had engaged in the intrastate transportation of household goods in use without Commission authorization.

   The Protestants note that the Petitioner has a prior history of attempting to deceive this Commission. They maintain that the averments contained in the Petition should be considered suspect and that we should deny the Petition. In the alternative, they request that hearings be held to determine the accuracy of the facts set forth in the Petition.

Discussion

   The Petitioner avers that the reformation of its business operations, following our denial of its Application, has removed its operations from our jurisdiction. The Petitioner requests that we entertain its Petition to resolve the uncertainty of whether its modifications, in fact, did so. Pursuant to Section 331(f) of the Public Utility Code, 66 Pa.C.S. § 331(f), the issuance of a declaratory order is a matter within the Commission's discretion.

   Section 102 of the Code, 66 Pa.C.S. § 102, defines ''public utilities'' as including ''[a]ny person or corporations now or hereafter owning or operating in this Commonwealth equipment or facilities for . . . [t]ransporting . . . property as a common carrier . . .'' A ''common carrier'' is defined as ''[a]ny and all persons or corporations holding out, offering, or undertaking, directly or indirectly, service for compensation to the public for the transportation of . . . property . . . between points within this Commonwealth. . . .'' (Id.). Additionally, a ''common carrier by motor vehicle'' is defined as:

Any common carrier who or which holds out or undertakes the transportation of . . . property . . . between points within this Commonwealth by motor vehicle for compensation, whether or not the owner or operator of such motor vehicle, or who or which provides or furnishes any motor vehicle, with or without driver, for transportation or for use in transportation of . . . property as aforesaid . . .

(Id.).

   The Petitioner avers that its intrastate household goods operations consist only of packing, loading, and unloading household goods. Further, the Petitioner contends that since the Commission's Opinion and Order entered September 7, 2001, it has substantially changed its advertisements, its service contract, and its involvement in obtaining transportation for its customers. Therefore, the Petitioner contends that its intrastate household goods operations do not render it a ''public utility,'' as defined in Section 102.

   Based solely on the averments contained in the Petition, we cannot conclude that any substantial changes have occurred in these areas. While the Petitioner's activities may no longer require Commission authority, various issues need to be further explored before we can reach such a determination.

   First, we note that the Petitioner admits that it continues to advertise its services in local telephone directories under the listing ''Movers,'' without indicating that it only provides labor services in connection with intrastate moves. While the Petitioner indicates that it intends to modify these advertisements in the future, it does not specify what modifications it plans to undertake. Moreover, the Petitioner contends that because it now holds interstate authority to transport household goods in use¹ and intrastate authority to transport property, excluding household goods in use,² its advertisements are not objectionable, and, therefore, do not need modification.

   The fact that Petitioner may hold other forms of authority does not entitle it to advertise in a manner that leads the public to believe that it also holds the intrastate authority to transport household goods in use. Further, specific information regarding the modifications that the Petitioner will implement is required in order for us to determine whether its advertisements are misleading to the public.

   Next, we note that, although the Petitioner maintains that it has modified its service contract to include only labor services, the Petitioner admits that the service contract, (Petitioner's Exhibit B), and labor agreement, (Petitioner's Exhibit A), contain provisions relating to transportation services. The Petitioner contends that those provisions apply only to the Petitioner's interstate transportation of household goods and should, therefore, be disregarded by us. Due to the Petitioner's commingling of its interstate transportation services with its intrastate services, we are unable to conclude, based solely on the language contained in the service contract and labor agreement, that the Petitioner has substantially changed its operations.

   Finally, we find that the Petitioner's averments regarding its involvement in the intrastate transportation of its customers' household goods are also deficient. According to the Petitioner, it now advises its customers that they are solely responsible for securing a vehicle and arranging for a driver to transport their household goods. Further, the Petitioner states that it no longer involves itself in its customers' selection process and does not arrange to pay for vehicles or drivers on their behalf. However, we are troubled by the Petitioner's failure to include any information regarding where its customers obtain their vehicles and drivers. The Petitioner's averments regarding its non-involvement in its customers' selection process do not foreclose the possibility that the Petitioner, or an entity related to the Petitioner, may, in fact, be supplying vehicles and drivers to the Petitioner's customers.

   Based on our review of this matter, we conclude that the Petition contains disputed facts and an issue of law on the Commission's jurisdiction. The jurisdictional issue could also have wider ramifications than this proceeding. Consequently, we will hold the Petition for Declaratory Order in abeyance and refer the matter to the Office of Administrative Law Judge for hearings and the issuance of a Recommended Decision; Therefore,

   It Is Ordered:

   1.  That the Petition for Declaratory Order of Penny Saver Direct, Inc., t/d/b/a Two Guys & A Truck be held in abeyance.

   2.  That the matter be referred to the Office of Administrative Law Judge for the purpose of conducting hearings and the issuance of a Recommended Decision.

   3.  That the Secretary's Bureau publish notice of the hearing, including this Opinion and Order, in the Pennsylvania Bulletin.

JAMES J. MCNULTY,   
Secretary

Hearing Notice

   This is to inform you that a hearing on the above-captioned case will be held as follows:

Type:	Initial Hearing on Remand
Date:	Thursday, August 15, 2002
Time:	10 a.m.
Location:	11th Floor Hearing Room Pittsburgh State Office Building 300 Liberty Avenue Pittsburgh, Pennsylvania
Presiding:	Administrative Law Judge James D.    Porterfield 1103 Pittsburgh State Office Building 300 Liberty Avenue Pittsburgh, PA 15222 Telephone: (412) 565-3550 Fax: (412) 565-5692

   Attention: You may lose the case if you do not come to this hearing and present facts on the issues raised.

   If you intend to file exhibits, 2 copies of all hearing exhibits to be presented into evidence must be submitted to the reporter. An additional copy must be furnished to the Presiding Officer. A copy must also be provided to each party of record.

   Except for those individuals representing themselves, the Commission's rules require that all parties have an attorney; therefore, you should have an attorney of your choice file an entry of appearance before the scheduled hearing.

   If you are a person with a disability, and you wish to attend the hearing, we may be able to make arrangements for your special needs. Please call the scheduling office at the Pennsylvania Public Utility Commission:

   *  Scheduling Office: (717) 787-1399.

   *  AT&T Relay Service number for persons who are deaf or hearing-impaired: (800) 654-5988.

[Pa.B. Doc. No. 02-1222. Filed for public inspection July 12, 2002, 9:00 a.m.]

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¹  The Petitioner states that it obtained a permit from the Federal Motor Carrier Safety Administration at Docket No. MC-415301-P, that authorizes the Petitioner to engage in the transportation of household goods by motor vehicle in interstate or foreign commerce.

²  The Petitioner received such authority by Certificate of Public Convenience issued on December 4, 2001, at Docket No. A-00116710F0003.

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