NOTICES
PENNSYLVANIA PUBLIC UTILITY COMMISSION
Default Order
[37 Pa.B. 5106]
[Saturday, September 15, 2007]Public Meeting held
August 30, 2007Commissioners Present: Wendell F. Holland, Chairperson; James H. Cawley, Vice-Chairperson; Terrance J. Fitzpatrick; Tyrone J. Christy; Kim Pizzingrilli
Pennsylvania Public Utility Commission, Bureau of Transportation and Safety v. Hope Transportation, Inc.; A-00119351; A-00119351C0701
Opinion and Order By the Commission
Before us for consideration is the Petition for Reinstatement of Certificate of Public Convenience (Petition) filed on June 15, 2007, by Hope Transportation, Inc., (Petitioner). No Response to the Petition has been filed.
History of the Proceeding On March 6, 2007, the Commission's Bureau of Transportation and Safety (BTS) instituted a Complaint against the Petitioner, alleging that the Petitioner failed to pay outstanding assessments of $1,408, a violation of section 510(c) of the Public Utility Code (Code), 66 Pa.C.S. § 510(c). The Complaint, with notice appended thereto, was served on the Petitioner on March 27, 2007. The Complaint advised the Petitioner that if an Answer were not filed within twenty days, BTS would request that the Commission impose the proposed penalty. The proposed penalty included cancellation of the Petition's Certificate of Public Convenience (Certificate).
Our Order issued herein on June 5, 2007, noted that the Petitioner had failed to file an answer to the Complaint. Accordingly, that Order, inter alia, cancelled the Petitioner's Certificate.
On June 15, 2007, the Petitioner filed the instant Petition requesting reinstatement of its Certificate.
Discussion It is well settled that decisions such as whether to grant a Petition for Reinstatement are left to the Commission's discretion and will be reversed only if that discretion is abused. Hoskins Taxi Service v. Pa. PUC, 486 A.2d 1030 (Pa. Cmwlth. 1985). In ruling upon a petition for reinstatement, it is incumbent upon this Commission to examine all relevant factors in order to reach an equitable result. Medical Transportation, Inc., 57 Pa. P.U.C. 79 (1983).
The Commission has identified five factors which are particularly relevant to the determination of a petition to reinstate: (1) the amount of time which elapsed between the cancellation of the certificate of public convenience and the filing of the petition to reinstate; (2) whether the petitioner has a record of habitually violating the Public Utility Code; (3) the reasonableness of the excuse given for the violation that caused the certificate to be cancelled, Re: Bishop, 58 Pa.P.U.C. 519 (1984); (4) whether the petitioner has implemented procedures to prevent a recurrence of the circumstances giving rise to the subject complaint, Pa.P.U.C. v. Grimm Motors, Docket No. A-00111048, et al. (May 1, 1998); and (5) whether the petitioner is in compliance with the requirement that all assessments must be current prior to reinstatement, Re: M. S. Carriers, Inc., Docket No. A-00110601 (May 4, 1999).
We note that, although the sole reason for the cancellation of the Petitioner's Certificate was the Petitioner's failure to pay its outstanding assessments, we find it necessary to evaluate all five factors in deciding whether to grant or deny the Petition.
The first factor relevant to the determination of a petition for reinstatement is the amount of time a certificate remains dormant. When the period of dormancy is short, reinstatement can be treated solely as a matter between a petitioner and the Commission. Application of Michael LoRusso, t/d/b/a Elegance Limousine Service, 1999 Pa.P.U.C. LEXIS 14, *5 (1999). The longer this period becomes, the more likely it is that another carrier would rely on the cancellation as being permanent and formulate plans to fulfill the dormant service. Id.
The Petitioner contends that it filed its Petition within the time frame specified by the Commission. (Petition at ¶ 3). That contention is borne out by a review of the record. The Petitioner's Certificate was cancelled by Order issued on June 5, 2007, and the Petitioner filed the instant Petition for Reinstatement on June 15, 2007. We note that ten days elapsed between the date of cancellation and the Petitioner's request for reinstatement. This short period of time weighs favorably toward granting reinstatement.
The second reinstatement factor is whether the Petitioner has a record of habitually violating the Code or the Commission's Regulations. The Petitioner contends that it has committed no violations of the Code or the Commission's Regulations since it was issued its authority. (Petition at ¶ 1). The Petitioner was issued its Certificate on July 7, 2003. A review of the Commission's records reveals that, other than the Complaint for which the Petitioner's Certificate was cancelled, the Petitioner has had no other complaints filed against it. On review of the foregoing, we conclude that the Petitioner does not have a history of violations of the Code and our Regulations. Accordingly, we conclude that this factor weighs in favor of reinstatement.
The third and fourth factors will be considered jointly, since they are interrelated. The third reinstatement factor queries the reasonableness of the excuse offered for the violation. The fourth factor is whether the Petitioner has implemented procedures to prevent a recurrence of the circumstances giving rise to the subject Complaint.
The violation for which the Petitioner's Certificate was cancelled was that the Petitioner failed to pay its outstanding assessments. The Petitioner provides the following account of how this violation occurred, and the steps it has taken to prevent a recurrence:
We had employed an accountant to handle our books and payment of bills, payroll and any other expenses which may have arisen. When any mail came in it was given directly to the accountant. It was our understanding that he was paying all bills as they came in. Much to our dismay we have found out that there were several items which were not paid including the assessment due to the State.We have since replaced that accountant and have taken a more active role in overseeing the financial aspect of the business to ensure that all debts are paid in a timely fashion.(Petition at 4, 5).
Our consideration of all of the above points leads us to conclude that the Petitioner has offered a reasonable excuse for the violation which led to the cancellation and also has implemented a reasonable procedure to prevent recurrence of the violation. Accordingly, the third and fourth factors weigh in favor of reinstatement.
The fifth factor requires assessments and fines to be current prior to reinstatement. The Petitioner asserts that all outstanding obligations have been paid in full. (Petition at ¶ 2). While the record indicates that the Petitioner has now paid its outstanding assessment, we note that the Petitioner has no evidence of current insurance on file with the Commission. Although payment of all outstanding obligations weighs in favor of reinstatement, the Commission's policy requires a new filing of proof of insurance by carriers whose petitions for reinstatement are granted. Accordingly, reinstatement of the Petitioner's Certificate herein will be made conditional on the receipt of a new filing of proof of insurance by the Petitioner within thirty days of the date of entry of the instant Opinion and Order.
Finally, we note that, although the Petitioner is current on its assessments, it is not current with its assessment reports. The Petitioner is reminded that it must file an annual assessment report, as required by Section 31.10 of our Regulations, 52 Pa. Code § 31.10. Additionally, the Commission recently adopted the policy that a carrier seeking reinstatement of its Certificate must be current in its assessment reports. The reinstatement will be made conditional on the filing of the reports, and the carrier will have sixty days after the date of issuance of the Opinion and Order in which to file the reports. Should the Petitioner have any question about the process of filing the reports, the Petitioner should contact the Financial and Assessment Section of the Commission's Office of Administrative Services. As stated, those reports will be due sixty days from the date of entry of this Opinion and Order. In order that all carriers should have notice of this policy, this Opinion and Order will be published in the Pennsylvania Bulletin.
In evaluating the facts and circumstances of this proceeding, we conclude that reinstatement of the Petitioner's Certificate is appropriate. However, we wish to admonish the Petitioner that violation of the Commission's rules and Regulations can result in the further imposition of severe sanctions including the cancellation of its Certificate; Therefore,
It Is Ordered That:
1. The Petition for Reinstatement filed by Hope Transportation, Inc., on June 15, 2007, will be granted conditional upon Hope Transportation, Inc., filing appropriate proof of liability insurance with the Commission's Bureau of Transportation and Safety within thirty (30) days of the date of entry of this Opinion and Order.
2. The Petition for Reinstatement filed by Hope Transportation, Inc., on June 15, 2007, will be granted conditional, additionally, upon Hope Transportation, Inc., filing its past due assessment reports with the Financial and Assessment Section of the Commission's Office of Administrative Services within sixty (60) days of the date of entry of this Opinion and Order.
3. Hope Transportation, Inc., is prohibited from operating until it has filed with the Commission's Bureau of Transportation and Safety the appropriate proof of liability insurance, as outlined previously.
4. A copy of this Opinion and Order shall be served on the Commission's Bureau of Transportation and Safety and on the Financial and Assessment Section of the Office of Administrative Services.
5. A copy of this Opinion and Order shall be served upon the Pennsylvania Department of Transportation and on the Pennsylvania Department of Revenue.
6. A copy of this Opinion and Order shall be sent for publication in the Pennsylvania Bulletin.
JAMES J. MCNULTY,
Secretary
[Pa.B. Doc. No. 07-1738. Filed for public inspection September 14, 2007, 9:00 a.m.]
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