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PA Bulletin, Doc. No. 03-329



Declaratory Order

[33 Pa.B. 1023]

Public Meeting held
February 6, 2003

Commissioners Present:  Glen R. Thomas, Chairperson; Robert K. Bloom, Vice Chairperson; Aaron Wilson, Jr., dissenting statement follows; Terrance J. Fitzpatrick; Kim Pizzingrilli

Application of Renzenberger, Inc.; Doc. No. A-00116249F.3

Declaratory Order

By the Commission:

   Before the Commission for disposition is the Petition for Declaratory Order of Renzenberger, Inc. (Renzenberger). In its petition, Renzenberger seeks a determination regarding the Commission's jurisdiction to regulate economically motor transportation services provided to the crew and other employees of Norfolk Southern Corporation (Norfolk Southern) by Renzenberger. Renzenberger and Norfolk Southern have proposed to enter into a contractual arrangement for Renzenberger to provide motor transportation services to the crew of Norfolk Southern between points exclusively located in Pennsylvania by using motor vehicles only having a seating capacity of less than 16 including the driver (16- vehicles). In considering prior applications of other applicants proposing similar type of motor transportation service to rail carriers, the Commission has exercised jurisdiction over the motor transportation service by determining the service to be ''in the public interest'' and issued certificates of public convenience to the applicants.1 Notwithstanding the Commission's exercise of jurisdiction over similar type of motor transportation service, Renzenberger asserts that the Commission lacks jurisdiction over its proposed motor transportation services to the crews of Norfolk Southern.

   Under section 331(f), 66 Pa.C.S. § 331(f), the issuance of a declaratory order is a matter within the Commission's discretion. Therefore, to remove the uncertainty associated with the Commission's jurisdiction to regulate Renzenberger's proposed motor transportation services to the crews of Norfolk Southern, we are entertaining this petition.

History of the Proceeding

   On November 6, 2000, Renzenberger filed an application with the Commission at Docket No. A-00116249F.3, requesting authority for the additional operating rights to provide transportation by motor vehicles to Norfolk Southern's railroad crews and other employees between points exclusively located in Pennsylvania.2 Renzenberger indicated that Norfolk Southern's impetus to engage Renzenberger's motor transportation services resulted from Federal regulations restricting rail crews to working only 12-hour shifts. Renzenberger further explained that as a result of this Federal legislation, Norfolk Southern must replace its crews every 12 hours, regardless of where the train may be, to ensure continuous rail service. Renzenberger asserted that operation of the entire Norfolk Southern system depended, among other things, on the regular and immediate transportation of its railroad crews and relief crews to and from operating trains.

   Shortly thereafter, on November 14, 2000, Renzenberger filed a Motion to Dismiss its Application docketed at A-00116249F.3. In its Motion, Renzenberger questioned the jurisdiction of the Commission to regulate economically the proposed motor transportation services to be provided to the crews and other employees of Norfolk Southern.

   By Secretarial Letter dated February 20, 2002, the Commission's Secretary's Bureau informed Renzenberger that the Motion to Dismiss would be treated as a Petition for Declaratory Order under section 5.42 of the Pennsylvania Code, 52 Pa. Code § 5.42. In an effort to expedite the matter and to comply with section 5.42(b) of the Code, 52 Pa. Code § 5.42(b), the Secretary's Bureau served the motion on the Office of Consumer Advocate, Office of Trial Staff, Office of Small Business Advocate and Professional Transportation, Inc. No parties responded to the motion.


   The issue is whether the Commission has the jurisdiction to regulate economically Renzenberger's proposed contractual arrangement with Norfolk Southern to provide to Norfolk Southern's crew and other employees motor transportation services between points exclusively located in Pennsylvania by using motor vehicles having a seating capacity of less than 16 including the driver (16- vehicles).

   As mentioned previously, the Commission has previously exercised jurisdiction over similar type of service.3 Nevertheless, Renzenberger asserts that the Commission lacks jurisdiction over its contemplated rail crew transportation service because: (i) the rail crew transportation service is interstate in nature and beyond the Commission's jurisdiction to regulate; or (ii) the Commission is preempted by the Transportation Equity Act from regulating this service.

   The Commission notes that this is the first time that an applicant providing rail crew transportation services has raised the issue that its proposed service is ''interstate in nature'' and, thus, beyond the Commission's jurisdiction to regulate. Fundamentally, if a motor carrier transportation service is interstate in nature, the Commission does not have the jurisdiction to regulate that particular transportation service. 49 V.S.C. § 13501; see also Merchants Fast Motor Lines, Inc. v. I.C.C., 5 F.3d 911 (5th Cir. 1993).

   In its petition, Renzenberger asserts that its proposed motor transportation services to Norfolk Southern is analogous to the motor transportation services provided to transient airline crew personnel between airport terminals and hotel accommodations located within the same state. This type of service has been held to be in interstate commerce in certain situations. See generally Motor Transportation of Passengers Incidental to Air, 95 M.C.C. 526 (1964).

   Renzenberger relies on the case of Pennsylvania Public Utility Commission v. United States of America, 812 F.2d 8 (D.C. Cir. 1987) in making the case for its analogy. In this particular case, an applicant, Air Couriers International, Inc. (ACI) had contracted with United Airlines (United) to transport United's employees from BWI Airport to a hotel located in Columbia, MD and back again to BWI Airport so that the flight crew could continue its interstate journey. The former Interstate Commerce Commission (ICC) had concluded ACl's service, which consisted of the single-state movement of transient flight crew personnel from an airport to hotel accommodations and back to the airport so as to continue their interstate travel, was interstate in nature.

   The Commission appealed the decision of the ICC. On appeal, the court determined that the principle established in the case, United States v. Yellow Cab Co., 332 U.S. 218 (1947), of focusing on a variety of factors so as to determine the degree of contact between the interstate carrier and the local transportation provider would be helpful in its analysis of whether the ICC had reached the appropriate conclusion. The court concluded that there were a number of factors present to suggest that the local transportation service provided by ACI was sufficiently related to the stream of commerce of United to be considered in interstate commerce. The court noted: (1) that there was an explicit contract between United and ACI for the transport of United's personnel; (2) that ACl's transportation service was not a part of a regularly scheduled service for other paying passengers; and (3) that ACl's service was not transporting the passengers (United's personnel) to their final destination, but only to a temporary hotel accommodation from which they would return subsequently so as to continue their interstate journey. See generally Airlines Transportation Inc. v. Tobin, 198 F.2d 249 (4th Cir. 1952).

   Additionally, the Court noted that its decision was consistent with prior ICC decisions on this issue. The ICC had established the rule that where there has been a prior or subsequent interstate air movement of passengers, the motor transportation of these passengers between an airport and another point in the same State, is an ''interstate movement'' only where there is an arrangement, referred to as a ''common arrangement'' or through ticketing,'' between the motor carrier and air carrier for continuous passage or interchange. Motor Transportation of Passengers Incidental to Air, 95 M.C.C. 526, 536 (1964); Kimball-Petition for Declaratory Order, 131 M.C.C. 908, 918 (1980); see also Midwest Transportation, Inc. Common Carrier Application, 98 M.C.C. 362, 363-364 (1965). Thus, for intrastate motor transportation services to be considered in interstate commerce, there must be an explicit common arrangement between the motor carrier and the interstate carrier which provides for continuous passage and interchange of the crew of the interstate carrier. Additionally, the arrangement between the motor carrier and the interstate carrier should specify that the ground transportation being provided by the motor carrier has been arranged and paid for by the interstate carrier. See Portland Airport--Petition for Declaratory Order, 118 M.C.C. 45 (1973).

   In the instant case, Renzenberger proposes to enter into an explicit contractual arrangement with Norfolk Southern to provide motor transportation services between points exclusively located in Pennsylvania to the crews and relief crews of Norfolk Southern. In accordance with this contract, the motor transportation services provided to the crews of Norfolk Southern are being paid for by Norfolk Southern. Additionally, Renzenberger indicates that is not holding itself out to the public at large to provide this particular motor transportation service because this service is not part of a regularly schedule service for other paying customers. The service is exclusively to Norfolk Southern.

   Furthermore, Renzenberger asserts that the contractual arrangement will provide that Renzenberger is only taking the crews to and from temporary housing accommodations and other locations in continuation of their interstate movement--not to their final destination. Thus, Renzenberger's arrangement with Norfolk Southern provides for continuous passage or interchange. The crews, relief crews and other employees of Norfolk Southern will have had an immediately prior, or will have an immediately subsequent movement by rail to or from some point located outside the state in which the temporary housing was located. Thus, similar to the airline crews, the crews and relief crews of Norfolk Southern are in transit.

   Despite the Commission's exercise of jurisdiction over similar type of service offered by other applicants, the Commission is persuaded by Renzenberger's argument that its rail crew transportation services to Norfolk Southern is in interstate commerce.4 The Commission concludes that similar to the arrangement between ACI and United, Renzenberger has a ''common arrangement'' with Norfolk Southern. Based on this conclusion, Renzenberger's proposed service to Norfolk Southern is in interstate commerce and the Commission does not have jurisdiction to regulate the service. Additionally, since the Commission has reached this conclusion concerning Renzenberger's first argument, we will not discuss the merits of Renzenberger's alternative argument regarding the preemption of the Commission's jurisdiction. Also, in light of our past practice of exercising jurisdiction over the type of motor transportation service proposed by Renzenberger, the Commission will publish this Declaratory Order in the Pennsylvania Bulletin. The Commission is taking this step solely to give similarly-situated carriers notice of the Commission's decision. However, we advise future applicants that they should present their case before the Commission prior to providing motor transportation services to rail carriers in Pennsylvania to give the Commission an opportunity to determine whether or not their particular case meets the specific facts necessary for a finding that the proposed service is interstate in nature; Therefore,

It Is Ordered That:

   1.  The Petition of Declaratory Order of Renzenberger, Inc. is granted in part and denied in part, consistent with the body of this Order.

   2.  Our conclusion is limited strictly to the specific fact pattern set forth in Renzenberger's Petition for Declaratory Order. To the extent any of Renzenberger's operations actually deviate from that fact pattern set forth in its Petition, our ruling does not extend to them and Renzenberger would have to file with the Commission an application for authority to operate as a motor carrier before providing any motor transportation service to any entity in Pennsylvania.

   3.  The Application at Docket No. A-00116249F.3 is dismissed and the Secretary's Bureau will take the appropriate action.

   4.  A copy of this Order be published in the Pennsylvania Bulletin and also served on Renzenberger, Inc.


Dissent of Commissioner Aaron Wilson, Jr.

Petition of Renzenberger, Inc.
Requesting a Declaratory
Order allowing them to
provide motor transportation
services to the crew of Norfolk
Southern Corporation
Public Meeting February
   6, 2003
Docket No. A-00116249

   Staff recommends interpreting a party's pleading as a Declaratory Motion in order to determine that motor carriers providing ancillary railroad crew transportation services are beyond the Commission's jurisdiction. Staff concludes that such matters are a concern of interstate commerce.

   For the reasons set forth in detail below, I dissent. I do not think that staff's recommendation is consistent with state and federal law.

   First, the matter has inexplicably languished at this Commission for over two years. Staff now urges the Commission to act on a stale pleading and depart from existing precedent, which treats carriers that provide ancillary transportation services to railroad crews as subject to Commission authority, without an adequate explanation for this change. As a matter of law, Declaratory Orders under Section 331 of our Public Utility Code are discretionary decisions, intended to remove uncertainty or terminate a controversy, that are immediately subject to appeal as a final order. Professional Paramedical Services, Inc. v. Pennsylvania Public Utility Commission, 106 Pa.Commonwealth Ct., 525 A.2d 1274, appeal denied 517 Pa. 627, 538 A.2d 879. I believe that the passage of time prevents us from issuing a Declaratory Order based on this stale pleading.

   Second, the Commission has previously certificated carriers that provide services similar to those offered by this Petitioner. Staff's recommendation departs from precedent in a manner that is inconsistent with Pennsylvania law. The recommendation originally overlooked all contrary precedent and now contains a cursory and inadequate explanation for departing from that contrary precedent. Under Pennsylvania law, the Commission is not strictly bound by the principle of stare decisis although we are required to render consistent opinions that must follow, distinguish or overrule our own precedent. Standard Fire Insurance v. Insurance Department, 1148 Pa.Commonwealth Ct. 350, 611 A.2d 356, 359 (1992); Lehigh Valley Farmers v. Block, 640 F.Supp 1497, affirmed, 829 F.2d 409 (Eastern District, Pennsylvania 1986). An agency abuses its discretion if it fails tointerpret statutes, regulations or orders consistent with their clean and plain meaning or when an agency fails to follow its own regulations and procedures. Peoples Natural Gas Company v. Pennsylvania Public Utility Commission, 542 A.2d 606, 608 (1988).

   Third, the issue of jurisdiction is never waived. The view that somehow the question of jurisdiction is waived because it was never raised by another party is contrary to law. Moreover, this unexplained departure from precedent could not have been challenged by any party precisely because the Declaratory Order was never publicly published in the Pennsylvania Bulletin. Consequently, no party was able to comment on this two-year old pleading that serves as the vehicle for an inadequately explained departure from past precedent.5 I do not believe this approach is consistent with due process nor do I believe that the jurisdictional issue is waived because it was never raised by a party. Blackwell v. State Ethics Commission, 513 Pa. 347, 567 A.2d 630 (1989), reargument granted, 529 Pa. 403, 573 A.2d 536 (1990) and on reargument, 527 Pa. 172, 589 A.2d 1094, 67 Ed.Law.Rep. 924 (1991).

   Fourth, staff's recommendation that the transportation of railroad crews is an interstate matter rests on an argument by analogy to the airline industry. Railroads are not airlines. I do not think we can ignore precedent and rely on the prior practices of an ostensibly analogous industry for the proposition that the Commission should act on a two-year old pleading for the conclusion that we must no longer certificate carriers that provide transportation for railroad crews.

   Finally, it has long been a fundamental legal tenet of constitutional law that the interstate commerce power of the federal government does not forestall all state action that affects interstate commerce. Consequently, even though state action affects interstate commerce incidentally, indirectly, or remotely, where it does not undertake to regulate such commerce and is no more than a bona fide, legitimate, and reasonable exercise of the reserved police power of the state in respect of a matter of local or internal concern, it is valid so long as it does not discriminate against interstate commerce or disrupt its uniformity. Corpus Juris Secundum, Vol. 15, § 11 citing Great Atlantic & Pacific Tea Company v. Cottrell, 424 U.S. 366, 96 S.Ct. 923, 47 L.Ed.2d 55 (1976); New Energy Company of Indiana v. Limbach, 486 U.S. 269, 108 S.Ct. 1803, 100 L.Ed.2nd 302 (1988); Bank of Lexington v. Jack Adams Aircraft Sales, Inc. 570 F.2d 1220, 23 U.C.C. Rep. Serv. 1008 (5th Cir. 1978); U.S. v. Pennsylvania Refuse Removal Association, 357 F.2d 806 (3rd Cir. 1966); Robert Emmet & Son Oil & Supply Company v. Sullivan, 158 Conn. 234, 259 A.2d 636, 45 A.L.R.3d 1261 (1969); Service Machine & Shipbuilding Corporation v. Edwards, 617 F.2d 70, 92 Lab. Cas (CCH) para. 55306 (5th Cir. 1980), judgment affirmed, 449 U.S. 913, 101 S.Ct. 310, 66 L.Ed.2nd 142 (1980); H.P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525, 69 S.Ct. 657, 93 L.Ed. 865 (1949).

   This Commonwealth has long expressed an interest in the ancillary services provided by transportation carriers that transport a railroad's crew. We did so in order to ensure the safety, adequacy, and reliability of those services. At no time has that authority ever been successfully challenged as an impediment to interstate commerce. There is simply no basis for concluding that traditional interstate commerce power removes any legitimate state interest in the safety of citizens, intrastate and interstate alike, being transported in Pennsylvania.

   Moreover, state regulation is valid under the Commerce Clause if it evenhandedly regulates to advance legitimate local interests, notwithstanding incidental effects on interstate commerce, unless the burden imposed on such commerce is clearly excessive to the putative local benefits. Mehlman v. Mobil Oil Corp., 291 N.J. Super 98, 676 A.2d 1143 (App. Div. 1996), judgment affirmed 153 N.J. 163, 707 A.2d 1000, 13 I.E.R. Cas. (BNA) 1441 (1998); Grant's Dairy Maine, LLC. V. Commissioner of Maine Department of Agriculture, 232 F.3d 8 (1st Cir. 2000).

   The Commonwealth's long-standing interest in certificating the providers of ancillary railroad transportation services, in order to ensure the safety, adequacy, and reliability of those services, has never been expressly declared to be anything less than even handed nor has any court ever declared that our certification authority clearly exceeds the benefits to all citizens, intrastate and interstate alike, that are transported by service providers like this Petitioner.

   State regulation is also valid when Congress has not acted or when, if the Congress has acted, state regulation is not deemed preempted in the absence of persuasive reasons. Alexandria Scrap Corporation v. Hughes, 391 F.Supp 46 (D. Md. 1975), judgment reversed on other grounds, 426 U.S. 794, 96 S.Ct. 2488, 49 L.Ed. 2nd 220 (1976); Swift & Company v. Wickham, 364 F.2d 241 (2nd Cir. 1966).

   In this case, the premier federal agency that regulated interstate railroads i.e., the Interstate Commerce Commission no longer exists. The federal interest in interstate railroads, let alone this Petitioner who merely wants to provide ancillary transportation services for railroad crews, has declined. The federal authority was vacated and any residual authority has been dispersed to a myriad of federal agencies. Staff cannot, and to date has not, identified what federal agency retains any interest in transportation services such as those provided by this Petitioner.

   The Commonwealth has an unchallenged history of imposing reasonable burdens on the providers of ancillary transportation services for interstate railroads even when the federal government extensively regulated interstate railroads. At no time then, or now, has our interest in the legitimate exercise of our police power to ensure the safety, adequacy, and reliability of ancillary transportation services for railroad crews been overturned as an unreasonable burden on interstate commerce? Since that was the case before the federal government abolished the Interstate Commerce Commission and given that no party presents current evidence demonstrating that the federal law abolishing the Interstate Commerce Commission also prohibited all state regulation, I do not believe that the Commission is without authority to require certification in order to ensure the delivery of safe, adequate, and reliable railroad crew transportation services in this Commonwealth.

   The Commission has jurisdiction and staff's recommendation does not adequately explain why we should depart from past precedent in which we asserted jurisdiction.

Dr. Aaron Wilson, Jr.,   


1 See, e.g., Application of Renzenberger, Inc., A-00116249 F.1 (Order entered August 21, 2000); Application of D&T Limousine Service, Inc., A-00109546 F.3 (Order entered April 13, 1994); Application of Milepost Inns, Inc. t/d/b/a Milepost Industries, A-00109365 F.1 (Order entered October 2, 1991).

2 Renzenberger had previously been granted authority by the Commission to provide motor transportation services, as a contract carrier, to the employees of CSX Transportation at Docket No. A-00l16249.

3 See supra footnote 1.

4 As the Commission mentioned above, this is the first instance in which an applicant proposing to provide motor transportation services only to a rail carrier has raised the argument that its service to the rail carrier is in interstate commerce. Accordingly, it is appropriate for the Commission to consider the issue and to make a determination based on the law and the specific facts presented in the instant case. Since the prior applicants never raised this issue before the Commission, but rather sought to have the Commission regulate them as motor carriers and issue them certificates of public convenience, the Commission appropriately exercised its jurisdiction over the applicants in those particular cases.

5 My reluctance to support a determination based on a two-year old record is reinforced by the fact that staff's recommendation on this stale record originally denied the existence of contrary precedent until its existence was brought to staff's attention. The cursory discussion that ensured of this reluctantly addressed precedent underscores my belief that this is not the appropriate proceeding to address this departure from precedent.

[Pa.B. Doc. No. 03-329. Filed for public inspection February 21, 2003, 9:00 a.m.]

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