Opinion
No. 2005 C.D. 2012
06-07-2013
Sawink, Inc., t/a County Cab Company, Petitioner v. Pennsylvania Public Utility Commission, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Sawink, Inc., t/a County Cab Company (Sawink), petitions for review of the September 27, 2012, order of the Pennsylvania Public Utility Commission (PUC) denying Sawink's exceptions to the June 22, 2012, initial decision of an administrative law judge (ALJ), who recommended approval of the application for a certificate of public convenience (Application) filed by Samir Ouaqerrouch (Applicant). We affirm.
On November 24, 2010, Applicant filed his Application requesting the right to begin a taxicab service in Tinicum Township, Delaware County. On January 31, 2011, Sawink filed a protest to the Application, claiming a competitive interest because its service area included Applicant's proposed service area.
On September 28, 2011, ALJ Cynthia W. Fordham held a hearing on the Application. Both parties were present and represented by counsel. Applicant testified on his own behalf and presented the testimony of three witnesses. Sawink presented the testimony of one witness. At the conclusion of the hearing, the parties presented closing arguments in lieu of briefs.
By notice dated February 8, 2012, the PUC transferred the matter to ALJ Kandace F. Melillo. On June 22, 2012, ALJ Melillo issued an initial decision recommending that the Application be approved. Sawink filed exceptions to the ALJ's decision, to which Applicant filed a reply.
After the transfer to ALJ Melillo, Applicant requested that ALJ Melillo delay issuing a decision because Applicant would be out of the country until mid-April 2012. Thus, ALJ Melillo did not close the record for purposes of decision-writing until April 16, 2012.
On September 27, 2012, the PUC issued a decision and order denying Sawink's exceptions, approving the Application, and adopting the ALJ's initial decision as its own. The PUC concluded that Applicant satisfied his burden of proving public demand or need for the proposed service, as well as his technical and financial fitness to operate the service safely and legally. See 52 Pa. Code §41.14(a)-(b). Thereafter, on October 18, 2012, the PUC issued a certificate of public convenience to Applicant. Sawink timely appealed to this court.
Our review of the PUC's decision is limited to determining whether the PUC committed an error of law, whether substantial evidence exists to support the PUC's findings, or whether a constitutional violation occurred. Limelight Limousine, Inc. v. Pennsylvania Public Utility Commission, 570 A.2d 1378, 1379 n.2 (Pa. Cmwlth. 1990). --------
First, Sawink argues that ALJ Melillo had no authority to issue an initial decision in this case because she did not preside at the hearing. Sawink relies on section 331(d)(8) of the Public Utility Code (Code), which states that "[o]fficers presiding at hearings" are empowered to "[m]ake decisions or recommend decisions." 66 Pa. C.S. §331(d)(8). Sawink claims that by specifying "[o]fficers presiding at hearings," the General Assembly intended to preclude other officers from rendering decisions.
Preliminarily, we find that Sawink waived this issue by failing to timely object or otherwise challenge the transfer. On February 8, 2012, the PUC transferred the matter to ALJ Melillo, who kept the record open until April 16, 2012. However, Sawink did not object to the transfer until it filed its exceptions to ALJ Melillo's decision. A party must raise an objection "at the earliest possible stage of the adjudicatory process." Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa. Super. 2000). There is no evidence, nor does Sawink argue, that Sawink did not receive the transfer notice. Because Sawink did not timely object to the transfer, this issue is waived.
Even if Sawink had not waived the issue, we would conclude that its claim lacks merit. Section 334(a) of the Code specifically permits another officer to issue a decision when the presiding officer becomes unavailable, stating, "The same presiding officer who presides at the reception of evidence shall make the recommended decision or initial decision except where such presiding officer becomes unavailable to the commission." 66 Pa. C.S. §334(a) (emphasis added); see also 52 Pa. Code §5.486(a) (stating that if a presiding officer becomes unavailable, the chief ALJ may either designate another qualified officer to prepare a decision or certify the record to the PUC for decision). Here, the PUC transferred this matter to ALJ Melillo when ALJ Fordham became unavailable. Therefore, ALJ Melillo lawfully issued a decision in this case.
Second, Sawink argues that the PUC erred in concluding that Applicant established a public need for the proposed taxicab service in Tinicum Township. Specifically, it asserts that Applicant's evidence was insufficient to support this conclusion because at the time of the hearing, Applicant was leasing a taxicab from Sawink. Sawink asserts that "[Applicant] established need by comparing his own service with existing service when the two services were one and the same." (Sawink's Br. at 9.) This claim lacks merit.
The PUC correctly concluded that Applicant established a prima facie case of public need in the proposed service area. Applicant's three witnesses were hotel employees whose jobs required that they obtain taxicabs for hotel guests. Each witness credibly testified regarding the length of time it typically takes for a taxicab to arrive and the negative impact the waiting period has on the hotel and its guests. Applicant testified that the reasons for the delay are that the current taxicab service to the area is not locally based and taxicabs must be dispatched from outside the area. The PUC concluded that Sawink failed to rebut Applicant's prima facie case of public need. Sawink's only witness responded to criticisms about Sawink's taxicab service but did not offer any testimony contesting the need for Applicant's service. We find no error.
Third, Sawink argues that Applicant failed to "introduce competent and persuasive evidence" to support his claims of financial and technical fitness. (Sawink's Br. at 9.) Sawink asserts that Applicant failed to produce sufficient evidence to substantiate his claims with respect to the purchase of vehicles, the leasing of office space, accommodations for vehicle maintenance and repair, the hiring of employees, or the procurement of adequate insurance coverage. We disagree.
With regard to technical fitness, Applicant credibly testified to his extensive experience in the taxicab industry. Applicant has more than eight years' experience as a driver, street supervisor, dispatcher, and office manager. Applicant also offered detailed testimony about his proposed business plan. Sawink, however, failed to present any rebuttal evidence on the issue of technical fitness. In fact, Sawink's counsel stated during his closing argument that Sawink was not contesting Applicant's technical fitness. (N.T., 9/28/11, at 88-89.)
With regard to financial fitness, Applicant submitted with his Application a balance sheet and a projected one-year income statement. The Application, including its exhibits, was entered into evidence at the hearing. Sawink, however, failed to cross-examine Applicant on the financial information included with the Application. Thus, the PUC properly concluded that Applicant established a prima facie case of technical and financial fitness.
Finally, Sawink argues that the PUC erroneously shifted the burden of proof to Sawink. Again, because the PUC concluded that Applicant sustained his burden of proving technical and financial fitness, the burden properly shifted to Sawink to challenge that finding. See 52 Pa. Code §41.14(c). However, Sawink failed to offer any evidence to challenge Applicant's technical and financial fitness. Therefore, this claim lacks merit.
Accordingly, we affirm the PUC's order.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge Judge Brobson concurs in the result only.
ORDER
AND NOW, this 7th day of June, 2013, we hereby affirm the September 27, 2012, order of the Pennsylvania Public Utility Commission.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge