[32 Pa.B. 5602]
Public Meeting held
October 24, 2002
Commissioners Present: Glen R. Thomas, Chairperson; Robert K. Bloom, Vice Chairperson; Aaron Wilson, Jr.; Terrance J. Fitzpatrick, statement concurring and dissenting in part follows; Kim Pizzingrilli
Application of Nicholas Moving & Storage, Inc., a corporation of the Commonwealth of Pennsylvania, for the transfer of all of the operating rights of O. H. Nicholas Transfer & Storage, Co., authorized under the certificate issued at A-00090110, F.2, subject to the same limitations and conditions; Doc. No. A-00118885
William A. Gray for the applicant
By the Commission:
This matter comes before the Commission on an application filed March 15, 2002. Public notice of the application was given in the Pennsylvania Bulletin of May 18, 2002. No protests were filed. The unopposed application is certified to the Commission for its decision without oral hearing.
Discussion and Findings
The applicant is seeking the grant of authority to transport household goods in use service and property, excluding household goods in use service, through a transfer of that authority from O. H. Nicholas Transfer & Storage, Co., which is currently certified to provide that service.
The reason for the transfer of the operating authority is because of a corporate reorganization. The intrastate operating authority is being sold for $1.00.
Nicholas Toubakaris, vice president and joint owner of Nicholas Moving & Storage, Inc. (Nicholas or applicant) has extensive experience in the moving and transportation industry. He is the president of the transferor. Mr. Toubakaris is familiar with all aspects of providing service as a household goods in use carrier.
The transferee will operate three straight trucks and two tractor-trailer combinations, which it will initially lease from the transferor and which will eventually be transferred to the transferee.
The transferee is a newly formed Pennsylvania corporation and has not yet commenced operations. It therefore does not have an income statement available. The owners of the transferor (2) will capitalize the transferee by contributing $10,000.00 each to the transferee. If additional cash contributions are required, they will be made.
The authority to be transferred has been operated by the transferor; therefore, it is presumed that there is a continuing need, which may be overcome only by evidence to the contrary. In re: Byerly, 440 Pa. 521 (1970); Hostetter v. Pa. P.U.C., 160 Super. Ct. 94 (1947) Since the record is void of any such evidence, this presumption of continuing public need applies in this transfer proceeding.
After complete review of the record, we find:
1. The applicant has the experience and fitness to provide the proposed service.
2. Approval of the unopposed application for transfer of the authority is necessary for the continued accommodation and convenience of the public; Therefore,
It Is Ordered: That the application be and is hereby tentatively approved granting the following rights:
1. To transport as a common carrier, household goods in use, between points in the county of Butler;
2. To transport as a common carrier, household goods in use, from points in the county of Butler, to other points in Pennsylvania, and vice versa; and
3. To transport as a common carrier, property, excluding household goods in use, between points in Pennsylvania.
Subject to the following general conditions:
1. That the authority granted herein to the extent that it duplicates authority now held or subsequently granted to the applicant shall not be construed as conferring more than one operating right.
2. That the approval hereby given is not to be understood as committing the Commission, in any proceeding that may be brought before it for any purpose to fix a valuation on the property and/or rights to be acquired by applicant from the present certificate holder equal to the consideration to be paid therefor, or equal to any value that may be placed thereon by the applicant, or to approve or prescribe rates sufficient to yield a return thereon.
3. That the certificate holder shall not transfer, sell or in anyway convey any of its outstanding capital stock to any individual, partnership, corporation or any other entity, without the prior filing of an application and approval thereof by the Commission under Section (a) (3) of Title 66 Pa.C.S.
It Is Further Ordered: That the applicant shall not provide any service granted in this order until the following is submitted to the Commission:
1. Form E evidence of Bodily Injury and Property Damage Liability Insurance.
2. Form H evidence of Cargo Liability Insurance.
3. A tariff establishing just and reasonable rates.
4. Payment of the Transferor's assessment in the amount of $1,366.00
It Is Further Ordered: That a copy of this Tentative order be published in the Pennsylvania Bulletin giving the public 10 days from the date of publication to file written comments or request oral hearing.
It Is Further Ordered: That absent the filing of adverse public comment or request for oral hearing within 10 days from the date of publication, the Tentative Order shall become final without further Commission action.
It Is Further Ordered: That upon the Tentative Order becoming final and upon compliance with the requirements herein before set forth, a certificate shall issue evidencing the Commission's approval of the right to operate as above determined.
It Is Further Ordered: That the authority granted herein, to the extent that it duplicates authority now held by or subsequently granted to the applicant, shall not be construed as conferring more than one operating right.
It Is Further Ordered: That in the event said applicant has not, on or before 60 days from the date that the Tentative Order becomes final, complied with the requirements hereinbefore set forth, the application shall be dismissed without further proceedings.
It Is Further Ordered: That applicant must demonstrate safety fitness by completing a Safety Fitness Review. Applicant will be contacted by the Commission's Bureau of Transportation and Safety, which will schedule a review to be completed within 180 days of the date the certificate is issued. Failure to submit to a Safety Fitness Review or to attain a satisfactory evaluation will result in cancellation of the certificate.
It Is Further Ordered: That upon compliance with the requirements of this order, the authority granted to O. H. Nicholas Transfer & Storage Co., under the certificate issued at A-00090110, F.2 shall be canceled and the record be marked closed.
JAMES J. MCNULTY,
[Pa.B. Doc. No. 02-2034. Filed for public inspection November 8, 2002, 9:00 a.m.]
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