Charles D. Perfater, Esq.
Perfater & Perfater
Charleston, West Virginia
Attorney for the Appellants
Lisa L. Wansley, Esq.
Charleston, West Virginia
Attorney for the Public Service Commission
Thomas N. Hanna, Esq.
Charleston, West Virginia
Attorney for Adkins Transfer, Inc.
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
1. "'An applicant for a permit to operate in this state
as a contract carrier as provided in Code, 1931, 24A-3-3(a), as
amended, must establish to the satisfaction of the Public Service
Commission, inter alia, that the privilege sought will not impair
the efficient public service of any authorized common carrier or
common carriers adequately serving the same territory and this is
especially applicable when a protest to the application is received
by the commission from a common carrier serving the same
territory.' Syllabus Point 1, Mountain Trucking Co. v. Daniels,
156 W. Va. 855, 197 S.E.2d 819 (1973)." Syllabus Point 1, Taxi
Service, Inc. v. Public Service Commission, 177 W. Va. 716, 356
S.E.2d 470 (1987).
2. "The needs of a shipper cannot override the
statutory requirement under W.Va. Code, 24A-3-3(a), that a contract
carrier show that no impairment of the efficient public service of
a common carrier serving the same territory will occur if a permit
is issued." Syllabus Point 2, Taxi Service, Inc. v. Public Service
Commission, 177 W. Va. 716, 356 S.E.2d 470 (1987).
3. "'[A]n order of the public service commission based upon its finding of facts will not be disturbed unless such finding is contrary to the evidence, or is without evidence to support it, or is arbitrary, or results from a misapplication of legal principles.' United Fuel Gas Company v. The Public Service Commission, 143 W. Va. 33, 99 S.E.2d 1 (1957). Syllabus Point 5, in part, Boggs v. Public Service Comm'n, 154 W. Va. 146, 174 S.E.2d 331 (1970). Syllabus Point 1, Broadmoor/Timberline Apartments v. Public Service Commission, 180 W. Va. 387, 376 S.E.2d 593 (1988)." Syllabus Point 1, Sexton v. Public Service Comm'n, 188 W. Va. 305, 423 S.E.2d 914 (1992).
Community Moving & Storage, Inc., Evans Transfer and
Movers, Inc., and Central Storage Company, Inc. (the common
carriers) appeal an order of the West Virginia Public Service
Commission (PSC) granting Adkins Transfer, Inc. a contract carrier
permit to provide a delivery service for Montgomery Ward & Co.
Alleging that as common carriers, they can perform the Montgomery
Ward delivery service and that their efficient public service will
be impaired if Adkins is permitted to operate the delivery service,
the common carriers appeal to this Court. Because the record
indicates that the PSC's decision was supported by substantial
evidence, we affirm the final order of the PSC.
On November 30, 1992, Adkins, a Florida corporation,
filed an application with the PSC for a contract carrier permit to
transport merchandise between Montgomery Ward's retail stores in
Harrison, Kanawha, Monongalia and Wood counties and to other points
in West Virginia.See footnote 1 The common carriers, alleging they can provide the same service, protested the requested permit. After a hearing,
the administrative law judge for the PSC recommended granting
Adkins the contract carrier permit. The common carriers filed
exceptions to the recommended decision. On November 9, 1993, the
PSC entered its final order adopting the recommended decision to
grant Adkins the contract carrier permit. Alleging that the PSC
failed to consider the similar service provided by the common
carriers and the adverse effect on the common carriers if the
permit is granted, the common carriers appeal to this Court.
Beginning in October 1992, Montgomery Ward, a department
store, entered into a nationwide contract with Adkins for the
delivery of furniture and appliances. In West Virginia, four of
Montgomery Ward's stores would be part of the switch to Adkins' delivery service.See footnote 2 In 1992, these four stores had over 10,000
deliveries. Although Montgomery Ward currently employs its own
delivery personnel and uses its own trucks, under the Adkins
contract, Adkins would employ and supervise the delivery personnel,
who would wear Montgomery Ward uniforms, and would own and provide
delivery trucks, most of which would carry the Montgomery Ward
The service proposed by Adkins includes: (1) a telephone
call setting up a delivery one day in advance; (2) a delivery
appointment with a four-hour range; (3) trucks equipped with
cellular telephones or, where necessary, beepers, to facilitate
communications among the customers, the stores and delivery
personnel; (4) installation of appliances that do not require any
new plumbing or electrical work; and (5) the use of experienced,
courteous, uniformed delivery personnel. Adkins proposes to tailor
its delivery service to each store's requirements, to purchase
existing Montgomery Ward equipment, and in most cases, to hire
existing delivery personnel, provided they meet Adkins'
requirements. At the hearing, Nathan Adkins, the Secretary-
Treasurer of Adkins, said that he was developing an employee
retirement and insurance program. Mr. Adkins also presented
information about his company's accounting, billing and personnel reimbursement procedures. Under the contract Adkins would be paid
$31.75 per delivery made. Mr. Adkins indicated that this new
service could begin within three weeks.
According Stephen Pater, Montgomery Ward's Home Delivery Manager, the store requires a dedicated delivery service because of their large volume, the need for experienced installers, the advantages in customer communications because of the pre-calls and use of cellular telephones, and the need to control the entire delivery process. Mr. Pater testified that the common carriers submitted a delivery proposal for the four West Virginia stores. According to Mr. Pater, the common carriers proposed to charge approximately $36 per hour for their service, even if the delivery were not made. Mr. Pater noted that, in the past, hourly rates were difficult to budget and resulted in tremendous budget overruns. In addition, the common carriers' trucks are not currently equipped with cellular telephones and the common carriers' proposal did not include a pre-call the evening before a delivery to the customer to assure correct and timely deliveries.
Leonard E. Papa, President of Community Moving and
Storage and Central Storage, and General Manager of Evans Transfer,
testified that together the common carriers have authority to
transport goods intrastate in all the Montgomery Ward delivery areas, have offices in Shinnston, Nitro and Clarksburg, own 20
pieces of equipment and employ 35 persons. Mr. Papa noted that the
common carriers have successfully delivered furniture and
appliances for other department stores and currently provided a
delivery service for three stores.See footnote 3 Mr. Papa noted that the charge
of the common carriers' delivery proposal was based on the common
carriers' tariff filed with the PSC and would be close to $36 per
hour. However the quoted tariff rate could not be found in the
approved traffic rates for the common carriers either for Northern
or Southern West Virginia.
Mr. Papa explained that unlike a simple delivery service,
the common carriers have the capability, training and experience
necessary to move whatever the public requires including: pianos,
delicate computers, massive equipment and entire households. Mr.
Papa noted that the common carriers' employees have an attractive
benefit and retirement package. According to Mr. Papa, although
their trucks did not have cellular telephones, the common carriers
recognized the benefits and were willing to use cellular
telephones. Mr. Papa noted that the common carriers would need
new, smaller equipment suitable for smaller short range home
deliveries. Finally Mr. Papa said that the common carriers' drivers could wear appropriate uniforms and Montgomery Ward's logo
could appear on a dedicated truck.
Mr. Papa noted that the dedicated service currently
provided by one of the common carriers costs $43.20 per hour and
that between 250 to 300 monthly deliveries are made.See footnote 4 The store
calls its customers to set up and to verify the delivery. Of all
these deliveries, Mr. Papa recalled that in May 1992 only one
person was not home and only one wrong lot was delivered.
Mr. Papa said he was willing to apply to the PSC for a
per delivery tariff but did not indicate what the proposed flat
tariff would be. Mr. Papa said that removing the Montgomery Ward
delivery segment from the common carriers would be something his
companies could never overcome because of the shrinking client
base. Mr. Papa acknowledged that the common carriers would need
additional personnel and would consider hiring Montgomery Ward's
current delivery personnel. The common carriers would be ready to
provide delivery service to Montgomery Ward within several weeks
under their present tariff until a per delivery rate was approved
by the PSC.
Traditionally, we have recognized a statutory distinction
between a common carrier, which is regulated by W. Va. Code 24A-2-1
 et seq. and a contract carrier, which is regulated by W.
Va. Code 24A-3-1  et seq. In Taxi Service, Inc. v. Public
Service Comm'n, 177 W. Va. 716, 721, 356 S.E.2d 470, 475 (1987), we
noted that "[o]ne of the most significant differences [between
these carriers] is the elements of proof that need to be shown to
obtain a permit."See footnote 5
Although to obtain a permit a common carrier needs only
to show "that public convenience and necessity require the proposed
service" (Syl. pt. 2, in part, Weirton Ice & Coal Supply Co. v.
Public Service Comm'n, 161 W. Va. 141, 240 S.E.2d 686 (1977)), a
contract carrier must show that its service will not impair the efficient public service of any authorized common carrier. W. Va.
Code 24A-3-3(a)  provides, in pertinent part:
No permit shall be granted unless the applicant has established to the satisfaction of the commission that the privilege sought will not endanger the safety of the public or unduly interfere with the use of the highways or impair unduly the condition or unduly increase the maintenance cost of such highways, directly or indirectly, or impair the efficient public service of any authorized common carrier or common carriers adequately serving the same territory.
In Syl. pt. 1, Mountain Trucking Co. v. Daniels, 156 W.
Va. 855, 197 S.E.2d 819 (1973)(Mountain Trucking I), we stated:
An applicant for a permit to operate in this state as a contract carrier as provided in Code, 1931, 24A-3-3(a), as amended, must establish to the satisfaction of the Public Service Commission, inter alia, that the privilege sought will not impair the efficient public service of any authorized common carrier or common carriers adequately serving the same territory and this is especially applicable when a protest to the application is received by the commission from a common carrier serving the same territory.
In accord Syl. pt. 1, Taxi supra; Syl. pt. 1, Mountain Trucking Co. v. Public Service Comm'n, 158 W. Va. 958, 216 S.E.2d 566 (1975)(Mountain Trucking II).
In Taxi, we recognized that our statutory scheme imposes
broad duties on a common carrier and balances that by requiring "a
contract carrier seeking a permit to demonstrate that its more limited service would not 'impair the efficient public service of
any authorized common carrier or common carriers adequately serving
the same territory.' W. Va. Code, 24A-3-3." Taxi, 177 W. Va. at
722, 356 S.E.2d at 476.
The issue of potential impairment of a common carrier was
addressed in Taxi and both Mountain Trucking I and II. In Taxi,
various taxi companies presented evidence that they were
"economically dependent upon the C & O Railroad's business [, which
the contract carrier wanted to provide,] to enable them to perform
their needed public service of transporting the elderly and the ill
and those who lack a private vehicle." Taxi, 177 W. Va. at 722,
356 S.E.2d at 476. Several of the owners of the taxi companies
testified that C & O Railroad's business made up more than half
their business. Taxi, 177 W. Va. at 719-20, 356 S.E.2d at 473-74.
In Syl. pt 2, Taxi, we held that "[t]he needs of a
shipper cannot override the statutory requirement under W.Va. Code,
24A-3-3(a), that a contract carrier show that no impairment of the
efficient public service of a common carrier serving the same
territory will occur if a permit is issued." In this case, we find
that although Adkins and Montgomery Ward presented evidence that
the contract between them was designed to meet the shipper's needs,
neither the administrative law judge nor the PSC allowed that consideration to override the need to show that the public service
of the common carriers would not be impaired.
In Mountain Trucking II, the common carriers' assertion
that their "companies would suffer by the grant of this requested
permit" was not refuted. Mountain Trucking II, 158 W. Va. at 962,
216 S.E.2d at 569. Mountain Trucking II also noted that the PSC
"neglected its duty as a fact-finder in this case to find facts."
Mountain Trucking II, 158 W. Va. at 964, 216 S.E.2d at 569. In
Mountain Trucking I, the common carriers noted their trucks were
idle and "that the grant of the requested contract carrier permit
would adversely affect their respective companies." Mountain
Trucking I, 156 W. Va. at 859-60, 197 S.E.2d at 822.
In this present case, the common carriers' claimed that
the contract carrier permit would hinder their operation by
Whenever there is a common carrier that can provide the service requested to change to a contract carrier, it eliminates a segment of business that should have the opportunity of a common carrier.
We constantly add new customers, lose new customers for whatever purpose. They move out of town. In the scenario of Sears, they took the delivery service back in-house because they had change of management, idea of management.
So take somebody like Montgomery Ward that has approximately 8,000 possible deliveries within West Virginia, to remove that segment of business from the possibility of our acquiring it, would be something that we could never recover from.
However, the common carriers said that they would need new employees and new trucks to deliver for Montgomery Ward. According to the common carriers, these new employees would not require the intensive level of training of their current employees and different sized and designed trucks are required for the Montgomery Ward service.See footnote 6
In this case, the common carriers seek to expand their
companies, not through their common carrier operations but by
taking over a specialty service, designed by a different company.
Although most of the service details of the Adkins contract are not
now offered by the common carriers, the common carriers maintain
that they are willing and able to provide such services. The
common carriers also maintain that if Adkins' permit is refused,
they will seek a contact carrier permit to provide the same
In its decision the PSC noted that "[t]he approval of the
permit will in no way impair the common carriers' current business.
They do not even currently have the necessary equipment. They do not even currently provide a service that is substantially the same
as suggested by the contract carrier and Montgomery Ward. The mere
fact that the protestants claim that they are willing to purchase
additional trucks and equipment, hire additional personnel and
change the nature of their services, does not preclude Commission
approval of the contested permit."
Our general standard for reviewing a PSC order was
recently reaffirmed in Syl. pt. 1, Sexton v. PSC, 188 W. Va. 305,
423 S.E.2d 914 (1992), which states:
"'[A]n order of the public service commission based upon its finding of facts will not be disturbed unless such finding is contrary to the evidence, or is without evidence to support it, or is arbitrary, or results from a misapplication of legal principles.' United Fuel Gas Company v. The Public Service Commission, 143 W. Va. 33, 99 S.E.2d 1 (1957)." Syllabus Point 5, in part, Boggs v. Public Service Comm'n, 154 W. Va. 146, 174 S.E.2d 331 (1970). Syllabus Point 1, Broadmoor/Timberline Apartments v. Public Service Commission, 180 W. Va. 387, 376 S.E.2d 593 (1988).
In Syl. pt. 2, Chesapeake and Potomac Telephone Co. of West Virginia v. Public Service Comm'n, 171 W. Va. 494, 300 S.E.2d 607 (1982), we held that "[t]his Court will not substitute our judgment for that of the Public Service Commission on controverted evidence." However, in Syl. pt. 3, Taxi, we held:
"An order of the Public Service Commission granting authority to operate as a contract carrier will be reversed, as being clearly wrong, where the applicant for such authority fails to sustain the burden of proof required by W.Va. Code 1931, 24A-3-3, as amended." Syllabus Point 2, Mountain Trucking Co. v. Public Service Comm'n, 158 W. Va. 958, 216 S.E.2d 566 (1975).
Applying this standard to the present case, we conclude
that the PSC did not err in finding that the issuance of a contract
carrier permit to Adkins would not impair the efficient public
service of the common carriers.
For the above stated reasons, the order of the Public
Service Commission issued on November 9, 1993 is affirmed.
Footnote: 1 W. Va. Code 24A-1-2  provides the following pertinent definitions:
(2) "Common carrier by motor vehicle" means
any person who undertakes, whether directly or
by lease or any other arrangement, to
transport passengers or property, or any class
or classes of property, for the general public
over the highways of this state by motor
vehicles for hire, whether over regular or irregular routes, including such motor vehicle operations of carriers by rail, water or air and of express or forwarding agencies, and leased or rented motor vehicles, with or without drivers;
(3) "Contract carrier by motor vehicle" means any person not included in subdivision (2) of this section, who under special and individual contracts or agreements, and whether directly or by lease or any other arrangement, transports passengers or property over the highways in this state by motor vehicles for hire. . . .
Footnote: 2 Montgomery Ward did not propose changing the delivery system of its Beckeley store.
Footnote: 3 One of the common carriers provided delivery service to Sears, Roebuck & Co. for about five years. The service ended in 1987 when Sears decided to operate its own delivery service.
Footnote: 4 The common carriers' most important dedicated delivery service is for the Huntington Mall store of J C Penney Co., Inc., and it consists of two trucks for two days a week. This delivery service was acquired from Adkins in 1990 when Adkins relocated from Huntington to Florida.
Footnote: 5 In its supplemental brief, the PSC noted that on August 23, 1994, President Clinton signed the Federal Aviation Administration Authorization Act of 1994 (FAAA Act of 1994), P.L. 103-305 [H.R. 2739], 108 Stat. 1569-1607. According to the PSC, effective January 1, 1995, the FAAA Act of 1994 removes the PSC's intrastate economic regulatory jurisdiction over rates, territory and service of nearly all motor carriers of property, except for transportation of household goods. See FAAA of 1994 §§ 601(h)(1) and (2), P.L. 103-305 § 601 (h)(1) and (2), and 108 Stat. 1606. The PSC notes that "household goods," as defined by 49 U.S.C. § 10102(11), does not include the merchandise to be transported for Montgomery Ward.
The common carriers urge us not to consider this case to be moot because the effective date of the deregulatory provision may be stayed and a premature determination would unfairly deny them their right to appeal and procedural due process.
Footnote: 6 The common carriers said that they currently had two trucks appropriate for the proposed service.