Opinion
43901 Record No. 790902.
January 11, 1980
Present: Carrico, Harrison, Cochran, Harman, Poff and Compton, JJ.
Corporation Commission properly applied the presumption of continuance in approving a household goods carrier's application to transfer a certificate of public convenience and necessity although the transferor had terminated his operations and the transferee operated in a different locality.
(1) Public Service Company — Household Goods Carriers — Transfer of Carrier's Certificate of Public Convenience and Necessity (Code Sec. 56-338.14) — Application of Presumption of Continuance Proper Although Transferor Had Terminated Operations.
(2) Public Service Company — Household Goods Carriers — Transfer of Carrier's Certificate — Presumption of Continuance Not Limited to Particular Locality.
A household goods carrier, apparently operating as a sole trader and based in Radford, terminated operations because of his poor health and six months later applied to the State Corporation Commission for approval of a transfer of his certificate of public convenience and necessity to another carrier based in Richmond. Seven protesting Richmond-based carriers appeal the Commission's approval of the transfer contending erroneous application of the presumption of continuance where the transferor has ceased operations and the transferee's base of operations is in a different locality.
1. The Commission properly applied the presumption of continuance of public convenience and necessity, notwithstanding evidence that the transferor had terminated operations under his certificate six months before the application for transfer. Cavalier Corp. v. Diamond Transfer, 220 Va. 651, 261 S.E.2d 314 (1979) (this day decided) is controlling.
2. Since the Household Goods Carriers Act does not require a point of origin to be specified in a certificate of public convenience and necessity, application of the presumption of continuance is proper even though the certificate is to be transferred to a carrier outside the locality of the transferor.
Appeal from an order of the State Corporation Commission.
Affirmed.
Paul M. Shuford (Mark E. Rubin, on brief,) for appellants.
Calvin F. Major; Edward C. Tosh (Lewis S. Minter; Denton C. Roberts; Goddin, Major, Schubert Hyman, on brief,) for appellees.
By order entered March 1, 1979, the State Corporation Commission approved an application to transfer a household goods carrier's certificate of public convenience and necessity held by Clifton D. Turner (Turner) to Rick's Movers, Inc. (Rick's). We consider two issues raised on appeal by seven protesting carriers (the protestants).
Brooks Transfer and Storage Co., Inc.; Centre Carriers Corp.; S.W. Cosby Co., Inc.; Cosby Transfer and Storage Corp.; Heflebower Transfer and Storage, Inc.; Lee Moving Incorporated of Hopewell; J. C. Shelburne Transfer and Storage Corp.
Turner, who had operated under his certificate for 15 years, testified that he "had a heart attack and . . . just couldn't look after" his business. He terminated operations in July 1978 and later contracted to sell his certificate to Rick's. On January 2, 1979, the contracting parties filed their application for approval of the transfer pursuant to Code Sec. 56-338.14. Applying the presumption of continuance of public convenience and necessity and the burden of proof rule expounded in Park Bros. v. S. M Systems Corp. 216 Va. 322, 218 S.E.2d 441 (1975), the Commission approved the application upon a finding that Rick's " 'is fit, has the capability and will furnish adequate and proper service' " and that the protestants had failed to show " 'ruinous or unreasonable competition, or that the transfer will not serve the public convenience and necessity' ", quoting 216 Va. at 326, 218 S.E.2d at 444.
First, the protestants argue that the Commission erred in applying Park Bros. to the case at bar because, they assert, the presumption "is rebutted and disappears" in the face of evidence that Turner had terminated operations under his certificate some six months before the transfer application was filed. In Cavalier Corp. v. Diamond Transfer, 220 Va. 651, 261 S.E.2d 314 (1979), this day decided, we rejected a similar argument based on facts essentially the same as those at bar; our decision there is controlling here.
Next, the seven Richmond-based protestants contend that the Park Bras. presumption of continuance of public convenience and necessity should not be applied "save in cases involving a request to transfer an 'active' certificate to another carrier in the same area." Turner's base of operations was in Radford, and Rick's is in Richmond. "Assuming a continuing need for this certificate," the protestants reason that "the need could only have been in Radford."
The Household Goods Carriers Act "does not require a point of origin to be specified [in a certificate] and, in our opinion, no such designation is contemplated by the Act." Cook Transfer v. Commonwealth, 196 Va. 384, 389, 83 S.E.2d 733, 736 (1954); accord, Fawley Motor Lines v. Commonwealth, 199 Va. 624, 101 S.E.2d 510 (1958); McDaniel v. Commonwealth, 199 Va. 287, 99 S.E.2d 623 (1957). As the Commission notes on brief, "[a] certificated carrier . . . is allowed to transfer [its] base of operations, or to establish branch offices at will without additional authority from the State Corporation Commission". If the Commission is not limited to a particular locality in determining the public convenience and necessity underlying the issuance of a certificate, the Park Bros. presumption of continuance which springs from that determination is not so limited.
Finding no error below, we will affirm the Commission's order.
Affirmed.