No. MC-C-371

JOINT NORTHEASTERN MOTOR CARRIER ASSOCIATION, INC., v. JACK ROSE AND M. WELLOFF, DOING BUSINESS AS ROSE TRANSPORTATION COMPANY

Submitted November 20, 1943. Decided June 16, 1944

Complaint alleging cessation of operations and looking to revocation of defendants' certificate, dismissed.

Isadore H. Schwartz for complainant.

Harry C. Maxwell for intervener.

No appearance for defendants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON BY DIVISION 5:

Exceptions were filed by the intervener to the order recommended by the examiner, and the defendants replied.

By complaint filed July 2, 1943, Joint Northeastern Motor Carrier Association, Inc., alleges that the defendants, Jack Rose and M. Welloff, doing business as Rose Transportation Company, on or about December 31, 1940, discontinued all motor-carrier operations authorized by their certificate in No. MC-323 consisting of the transportation (1) of general commodities, with certain exceptions, between Philadelphia, Pa., and Atlantic City, N. J., over a specified route, with service at all intermediate points and at designated off-route points, and (2) of household goods between Philadelphia and points in Pennsylvania within 15 miles of Philadelphia, on the one hand, and points in New Jersey, on the other, over irregular routes; and that defendants have not since on or about the date mentioned complied with the requirements of section 217 (a) of the Interstate Commerce Act respecting the filing and posting of tariffs. Complainant asks that defendants' certificate be revoked. Needham's Motor Service, Inc., intervened in support of the complaint.

Defendants in an answer to the complaint denied that they have discontinued operations or that they have failed to comply with the requirements of section 217 (a) of the act as alleged. Defendants did not appear at the hearing.

Complainant at the hearing offered no evidence in support of the allegations contained in its complaint. Instead it moved that because

of defendants' failure to appear that the certificate of public convenience and necessity issued to them be revoked, and that they be required to cease and desist from any further motor-carrier operations.

We were without authority to revoke defendants' certificate other than in the manner prescribed in section 212 (a) of the act. As provided therein, we may revoke a certificate only for willful failure to comply with any provision of the act, or with any lawful order, rule, or regulation, promulgated by us thereunder, or with any term, condition, or limitation of such certificate, and then only if the holder thereof willfully fails to comply, within a reasonable time, not less than 30 days, to be fixed by the Commission, with a lawful order made as provided in section 204 (c), commanding obedience to the provisions of the act, or to the rule or regulation of the Commission thereunder, or to the term, condition, or limitation of such certificate found by the Commission to have been violated by such holder.

No evidence was offered at the hearing by complainant or intervener in substantiation of the allegations in the complaint. Obviously, in the absence of such evidence, we are without any basis for proceeding under either section 204 (c) or 212 (a) of the act. In the instant proceeding, the burden of proof clearly was upon complainant, and the failure of defendants to appear in no wise relieved it of the obligation of proving its allegations.

We find that it has not been shown that the defendants have discontinued operations or that they have failed to comply with the provisions of section 217 (a) of the act.

An order dismissing the complaint will be entered.

1 Section 204 (c) reads in part as follows: "Upon complaint in writing to the Commission by any person, State board, organization, or body politic, or upon its own initiative without complaint, the Commission may investigate whether any motor carrier has

failed to comply with any provision of this part, or with any requirement established pursuant thereto. If the Commission after notice and hearing, finds upon any such investigation, that the motor carrier has failed to comply with any such provision or requirement, the Commission shall issue an appropriate order to compel the carto comply therewith."

rier

43 M. C. C.

No. MC-55789

NATIONAL TRUCKING CO., INC., COMMON CARRIER APPLICATION

Decided June 6, 1944

On reconsideration, findings in prior report, 42 M. C. C. 829, modified. Applicant found entitled to continue operations as a common carrier by motor vehicle of specified commodities between certain areas in Connecticut, New Jersey, New York, and Pennsylvania, over irregular routes, by reason of its having been so engaged on June 1, 1935, and continuously since. Issuance of an appropriate certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied.

Appearances as shown in prior report, with the addition of Harold G. Hernly for applicant.

John R. Norris and James J. Doherty for intervener.

REPORT OF THE COMMISSION ON RECONSIDERATION

BY THE COMMISSION:

In the prior report, 42 M. C. C. 829, decided May 5, 1943, division 5 found that applicant, National Trucking Co., Inc., of Newark, N. J., was entitled to a certificate under the "grandfather" clause of section 206 (a) of the Interstate Commerce Act, authorizing continuance of operations, in interstate or foreign commerce, as a common carrier by motor vehicle of iron and steel products; building, construction, heating and insulating materials, supplies, and equipment; wire and wire products; and all such commodities as are dealt in by wholesale and retail hardware stores: (1) Between points in New Jersey within 25 miles of Newark, N. J., including Newark, (2) between Newark and points in New Jersey within 25 miles thereof, on the one hand, and (a) points in Bronx, Kings, Nassau, New York, Queens, Richmond, Rockland, and Westchester Counties, N. Y., and (b) points in Pennsylvania on and east of U. S. Highway 11 from the New York-Pennsylvania State line to Lemoyne, Pa., and on and east of U. S. Highway 111 from Lemoyne to the Maryland-Pennsylvania State line, on the other, (3) from Newark and points in New Jersey within 25 miles thereof, to (a) all points on Long Island, N. Y., points in New York on and south of U. S. Highway 20 from the New York-Massachusetts State line to its junction with New York Highway 30, thence on, east, and south of New York Highway 30 from its

junction with U. S. Highway 20 to East Branch, N. Y., on and east of U. S. Highway 17 from East Branch to Hancock, N. Y., and on and east of an unnumbered highway from Hancock to the New YorkPennsylvania State line, except as authorized in (2) above, and (b) points in Connecticut on and west of the Connecticut River (4) from Georgetown, Conn., to Newark, and (5) wire cloth from York, Pa., and nails and spikes from Allentown, Pa., to points in that part of New York included within the New York, N. Y., commercial zone as defined in New York, N. Y., Commercial Zone, 1 M. C. C. 665, and 2 M. C. C. 191, all over irregular routes. The application in all other respects was denied. Pursuant to this authority, applicant was issued a certificate on July 14, 1943, covering the described operations.

Upon consideration of the record and of applicant's petition for reconsideration, the proceeding was, by order entered February 7, 1944, reopened for reconsideration on the present record, and the prior order of May 5, 1943, insofar as it denied the application, was vacated and set aside.

In its petition, applicant asserts that the authority granted in the prior report does not, in all respects, reflect the scope of the motorcarrier operations conducted by it on and since June 1, 1935, and requests that it be granted authority to continue the transportation of the commodities heretofore described (1) between points in New Jersey and New York with 25 miles of Newark, including Newark, and (2) between points in New Jersey and New York within 25 miles of Newark, including Newark, on the one hand, and, on the other, points in New Jersey, and those in the previously described portions of Connecticut, New York, and Pennsylvania, and points in Cecil, Harford, and Baltimore Counties, Md., over irregular routes, traversing Delaware for operating convenience only. The facts set forth in the prior report will be restated only to the extent necessary for clarity of discussion.

Applicant was incorporated in New Jersey in 1931, and has since been engaged in motor-carrier operations. It was registered under a code of fair competition for the trucking industry. On June 1, 1935, it was operating 14 trucks and 1 semitrailer. On the date of hearing in August 1941, it owned and was using 7 tractors, 10 semitrailers, 7 four-wheel trucks, and 5 six-wheel trucks in conducting its operations.

Applicant's headquarters and the principal part of its operations are in the highly industrialized and thickly populated areas of northern New Jersey and southeastern New York. Although it owns a garage which is used for the repair and storage of equipment, it has never maintained any terminal facilities. It has from the be

ginning of operations been engaged in performing a call-on-demand service for the general public over irregular routes. Its trucks and trailers are of the stake-body type and their loading capacities range from 5 to 20 tons. Certain units of its equipment are specially designed for the movement of shipments of unusual size, weight, and length.

Since prior to June 1, 1935, applicant has been rendering a regular service for several shippers engaged in the manufacture, jobbing, and distribution of materials and supplies used by building contractors and for the construction and maintenance of roads, bridges, buildings, and tunnels. Approximately 50 percent of its traffic has originated with one of these shippers, and of the remainder of the traffic transported, 30 percent has been received from three others. Shipments of the described materials and supplies frequently require delivery direct to job sites. In many instances when sufficient materials and supplies are delivered to a particular point for completion of a construction project there is no further demand for applicant's service to such point, consequently the points of destination in the territory served frequently change depending upon the extent of the construction in a given area.

To establish the nature and scope of its claimed operations, applicant relies to a considerable extent on the testimony of its president, who has been employed by it since its incorporation, and that of three shipper-representatives. In addition, it submitted in evidence an exhibit listing approximately 30 percent of the shipments transported between January 1933 and February 1941, as representative of the operations conducted. Memorandum books kept in the regular course of business, shipping documents, and other supporting data were made available for examination by interested parties. Evidence of operations conducted prior to January 1934, however, is too remote for consideration in connection with operations claimed to have been performed on and after June 1, 1935, and will not be further considered. The oral testimony is somewhat general in character; however, it does establish with a reasonable degree of certainty that applicant has been engaged in conducting operations since prior to the statutory date, which have been limited to the transportation of heavy commodities such as iron and steel products, building materials and supplies, and hardware, from and to various points within the scope of the application, as amended.

Applicant's principal shipper, Igoe Brothers, Inc., of Newark, is engaged in the manufacture and sale of an extensive range of construction materials and supplies and numerous related miscellaneous articles. It has a manufacturing plant at Newark and maintains

43 M. C. C.