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PENNSYLVANIAPUBLIC UTILITY COMMISSIONHarrisburg, PA 17105-3265Public Meeting held May 19, 2016Commissioners Present:Gladys M. Brown, ChairmanAndrew G. Place, Vice ChairmanJohn F. Coleman, Jr.Robert F. PowelsonRonald Cab, Inc. t/a Community CabDee Dee Cab, Inc. t/a Penn-Del Cab Shawn Cab, Inc. t/d/b/a Delaware County Cab Co. Sawink, Inc. t/d/b/a County Cab Co.C-2010-2167828 M-2013-2381012v.Oged, Inc.OPINION AND ORDERBY THE COMMISSION:Before the Pennsylvania Public Utility Commission (Commission) for consideration and disposition are the Exceptions filed by Ronald Cab, Inc. t/a Community Cab, Dee Dee Cab, Inc. t/a Penn-Del Cab, Shawn Cab, Inc. t/d/b/a Delaware County Cab Co., and Sawink, Inc. t/d/b/a County Cab Co. (Complainants) on November 24, 2015, in response to the Initial Decision on Remand (I.D. or Initial Decision on Remand) of Administrative Law Judge (ALJ) Cynthia Williams Fordham, issued November 4, 2015. Oged, Inc. (Respondent or Oged) filed Replies to Exceptions on December 4, 2015. For the reasons stated below, we will grant the Complainants’ Exceptions, in part, and modify the ALJ’s Initial Decision on Remand, consistent with this Opinion and Order.History of the ProceedingThe Complainant Ronald Cab, Inc. t/a Community Cab is a public utility holding a Certificate of Public Convenience (Certificate) that authorizes it to transport as a common carrier, persons upon call or demand:1)at the 69th Street terminal located in the township of Upper Darby, Delaware County;(2)at the SEPTA terminal at 9th and Main Streets, in the borough of Darby, Delaware County; and(3)in the boroughs of East Lansdowne and Yeadon, and that portion of Upper Darby Township south of and including Marshall Road and east of Union Avenue and Wycombe Avenue, north of the Eden Borough line and west of Cobbs Creek Parkway, Delaware County. The Complainant Shawn Cab, Inc. t/d/b/a Delaware County Cab Co. is a public utility holding a Certificate that authorizes it to transport, as a common carrier, persons upon call or demand, in the townships of Upper Providence, Springfield, Ridley, Nether Providence, Middletown, Edgemont, and Aston, and the boroughs of Chester Heights, Brook Haven, Media, Morton, Ridley Park, Rose Valley, Swarthmore, Rutledge and Glenolden, all in the county of Delaware.The Complainant Sawink, Inc. t/d/b/a County Cab Co. is a public utility holding a Certificate that authorizes it to transport, as a common carrier, by motor vehicle, persons upon call or demand, in the county of Delaware, excluding the townships of Radnor, Marple, Upper Providence and Newtown.The Complainant Dee Dee Cab, Inc. t/a Penn-Del Cab is a public utility holding a Certificate that authorizes it to transport, as a common carrier, persons upon call or demand: (1)between points in the borough of Lansdowne, Delaware County;(2)in that portion of the township of Upper Darby, Delaware County, west of and including Lansdowne Avenue;(3)at the 69th Street Terminal in the township of Upper Darby, Delaware County; and (4)within that area of the City of Philadelphia bounded on the north by Lancaster Avenue, on the east by 56th Street, on the south by Grays Avenue (Grays Ferry Avenue), and on the west by the city limits.Initial Decision of ALJ Ky Van Nguyen, Docket No. C-2010-2167828 (issued January 25, 2012) (January 2012 Initial Decision), Findings of Fact Nos. 1-4. Oged is a public utility holding a Certificate that authorizes it to transport, as a common carrier, persons, upon call or demand:in the city and county of Philadelphia and that area bounded by a line beginning on the north of the Delaware River at the Philadelphia county line, thence northwardly, westwardly, and southwestwardly along the Philadelphia county line to Philmont Avenue, thence southwestwardly along Philmont Avenue, Welsh Road, Valley Road, Washington Lane, Township Line to Glenside Avenue (excluding any portion of the borough of Jenkintown), Easton Road, Church Road, and Paper Mill Road to the Philadelphia County line and Blue Bell Road to Joshua Road, thence southwestwardly along Joshua Road to Cedar Grove Road, thence southeastwardly along Cedar Grove Road and the Schuylkill River joining the Philadelphia County line and continuing to Port Royal Avenue, thence across the Schuylkill River to Mill Creek Road, Montgomery County, thence southwestwardly along Mill Creek Road, Lancaster Avenue, Ardmore Avenue into Delaware County, and continuing along Ardmore Avenue into Delaware County, and continuing along Ardmore Avenue, Ellis Road, Lawrence Road and State Road, thence southwardly along State Road, Springfield Avenue, Saxer Boulevard, thence northeastwardly along Winona Avenue continuing in a straight line to the Delaware River, and thence northwardly along the Delaware River to the place of beginning; and persons upon call or demand in the boroughs of Norwood, Prospect Park, Ridley Park and Rose Valley, the townships of Ridley, Tinicum, Nether Providence, the village of Moylan and including Lester and Essington, all in Delaware County.The Respondent’s Certificate contained vehicle limitations, as will be discussed further herein. Respondent’s Exhs. 1, 2, and 4. The Parties in this case are partial-rights taxicabs. On March 31, 2010, the Complainants filed a Complaint against the Respondent alleging that their service territories outside the City of Philadelphia (City) overlap that of the Respondent. The Parties have Certificates authorizing them to provide taxicab service at the 69th Street terminal located in Upper Darby, Delaware County, a territory outside of the City. The Complainants alleged that the Respondent abandoned its operation in this territory, failed to report revenue to the Commission, and transferred its operating authority without the Commission’s approval, all in violation of the Public Utility Code (Code) and the Commission’s Regulations. On April 26, 2010, the Respondent filed an Answer denying any wrongdoing and stated that it has been operating within the territory authorized by the Commission. A hearing was held on October 4, 2011. The Complainants were represented by counsel, who presented the testimony of one witness and four exhibits which were admitted into the record. The Respondent was represented by counsel who presented the testimony of one witness. The hearing generated a transcript of seventy-five pages. The Complainants filed their Main Brief on November 15, 2011, and the Respondent filed its Reply Brief on December 16, 2011. The record closed on December 16, 2011.In the January 2012 Initial Decision, ALJ Ky Van Nguyen recommended, inter alia, that the Complaint be sustained, in part. I.D. at 14.The Parties filed Exceptions and Replies to Exceptions. On March 29, 2012, the Commission entered an Opinion and Order (March 2012 Order) denying the Complainants’ Exceptions, granting the Respondent’s Exceptions, in part, modifying the Initial Decision, and dismissing the Complaint. The Complainants appealed the Commission’s decision to the Commonwealth Court of Pennsylvania. On July 12, 2013, the Commonwealth Court issued an Opinion and Order, Ronald Cab, Inc., t/a Community Cab v. Pa. PUC, 76 A.3d 74 (Pa. Cmwlth. 2013). The Court vacated the March 2012 Order and remanded the matter to the Commission for further proceedings. The Court requested that the Commission review issues related to the bifurcation of Oged’s authority when the regulation of Philadelphia taxicabs and limousines was transferred from the Commission to the Philadelphia Parking Authority (PPA or Authority) and its effect upon Oged’s present authority. The matter on remand was assigned to ALJ Fordham. The Commission issued a Secretarial letter on November 5, 2013 (November 2013 Secretarial Letter), explaining the issue on remand as follows: The issue on remand involves the effect Act 94 of 2004 had on OGED Inc.’s ability to provide taxicab service both within Philadelphia and outside Philadelphia and, inter alia, whether Act 94 bifurcated OGED’s original Commission issued certificate of public convenience into two certificates, one issued by the Commission and one by the [PPA], whether OGED is a medallion company subject only to regulation by the [PPA] but with the ability to have a service area outside Philadelphia, and whether a separate or amended certificate of public convenience issued by the Commission is required by medallion taxis to provide service wholly outside of Philadelphia. November 2013 Secretarial Letter at 1.The Secretarial letter also stated that when Act 94 was enacted in 2004, extra-Philadelphia rights were associated with 800 medallions, similar to Oged. Since that time, numerous carriers voluntarily discontinued their authority to provide service outside of Philadelphia. However, a significant number of carriers may still hold both medallion authority and authority to provide service outside of Philadelphia. In light of the medallion carriers’ potential interest in this proceeding, the Secretarial Letter was sent to them to allow them to intervene. Id. On December 5, 2013, the following companies filed a Notice of Intervention: A D Cab Co., FAD Trans Inc., Grace Trans Inc., LAN Trans Inc., MAF Trans Inc., RAV Trans Inc., and SAJ Trans Inc. (Intervenors).A prehearing conference was held on March 27, 2014. During the prehearing conference, counsel for the Intervenors stated the companies that filed Notices to Intervene were not interested in participating in this matter. Tr. at 8, 9. By letter dated April 24, 2014, counsel requested that the Notices to Intervene be withdrawn. By Prehearing Order on Remand dated August 1, 2014, the Intervenors’ requests to withdraw were granted. The hearing on remand was held on February 26, 2015. The Complainants were represented by counsel who presented one exhibit that was admitted into the record. Oged was represented by counsel who presented the testimony of one witness, who sponsored four exhibits that were admitted into evidence.Consistent with the Order on Remand dated March 24, 2015, the Respondent’s counsel submitted three late-filed exhibits, which were admitted into the record without objection by Order on Remand dated June 15, 2015.The Parties filed Main Briefs on July 24, 2015. The Respondent filed a Reply Brief on August 7, 2015.The record on remand consists of the original record, an eighty-nine page transcript of the proceedings on remand, eight exhibits on remand, and the Parties’ Briefs. The record closed on August 7, 2015. In the Initial Decision on Remand, issued November 4, 2015, ALJ Fordham dismissed the Complaint. As previously stated, the Complainants filed Exceptions on November 24, 2015. The Respondent filed Replies to Exceptions on December 4, 2015. DiscussionLegal StandardsAs the proponent of a rule or order, the Complainants in this proceeding bear the burden of proof pursuant to Section?332(a) of the Code. 66 Pa. C.S. § 332(a). To establish a sufficient case and satisfy the burden of proof, the Complainants must show that the Respondent is responsible or accountable for the problem described in the Complaint. Patterson v. The Bell Telephone Company of Pennsylvania, 72 Pa. P.U.C. 196 (1990). Such a showing must be by a preponderance of the evidence. Samuel?J. Lansberry, Inc.?v. Pa. PUC, 578?A.2d 600 (Pa. Cmwlth. 1990), alloc. denied, 529 Pa. 654, 602 A.2d 863 (1992). That is, the Complainants’ evidence must be more convincing, by even the smallest amount, than that presented by the Respondent. Se-Ling Hosiery, Inc. v. Margulies, 364 Pa. 45, 70 A.2d 854 (1950). Additionally, this Commission’s decision must be supported by substantial evidence in the record. More is required than a mere trace of evidence or a suspicion of the existence of a fact sought to be established. Norfolk & Western Ry. Co. v. Pa. PUC, 489 Pa. 109, 413 A.2d 1037 (1980).Upon the presentation by the Complainants of evidence sufficient to initially satisfy the burden of proof, the burden of going forward with the evidence to rebut the evidence of the Complainants shifts to the Respondent. If the evidence presented by the Respondent is of co-equal value or “weight,” the burden of proof has not been satisfied. The Complainants now have to provide some additional evidence to rebut that of the Respondent. Burleson v. Pa. PUC, 443 A.2d 1373 (Pa. Cmwlth. 1982), aff’d, 501 Pa. 433, 461 A.2d 1234 (1983). While the burden of going forward with the evidence may shift back and forth during a proceeding, the burden of proof never shifts. The burden of proof always remains on the party seeking affirmative relief from the Commission. Milkie v. Pa. PUC, 768 A.2d 1217 (Pa. Cmwlth. 2001).In the Initial Decision on Remand, ALJ Fordham made twenty-eight Findings of Fact and reached five Conclusions of Law. I.D. at?9-12, 18. We shall adopt and incorporate herein by reference the ALJ’s Findings of Fact and Conclusions of Law unless they are either expressly or by necessary implication overruled or modified by this Opinion and Order. Before addressing the Exceptions, we note that any issue or Exception that we do not specifically address shall be deemed to have been duly considered and denied without further discussion. It is well settled that we are not required to consider, expressly or at length, each contention or argument raised by the parties. Consolidated Rail Corp. v. Pa. PUC, 625 A.2d 741 (Pa. Cmwlth. 1993); also see, generally, University of Pennsylvania?v. Pa. PUC, 485 A.2d 1217 (Pa. Cmwlth. 1984).Positions of the PartiesThe Complainants objected to the Respondent operating more than one vehicle per Certificate outside of the City and contended that such operation violated the Respondent’s tariff on file with the Commission. The Complainants admitted that Act 94 did not affect the rights the Commission granted to Oged in its Certificate prior to the Act. Complainants’ M.B. at 15, 16. The Complainants explained that the rules for obtaining a Certificate to provide taxicab service within the City were different from the rules for acquiring a Certificate to provide taxicab service outside of the City. Under the prior law, the Medallion Act, applicants for Certificates to provide taxicab service within cities of the first class did not have to show a public need for the service. Id. at 17. The Complainants stated that, although the Medallion Act dealt with the regulation of taxicab service in the City, half of the Certificates issued by the Commission authorizing citywide call or demand service also granted operating rights outside of Philadelphia. The Complainants argued that the Commission regulated all Certificates with citywide call or demand rights in the same manner, regardless of whether call or demand service was authorized outside of Philadelphia. According to the Complainants, all taxicabs that also had rights outside of the City still were required to have a medallion affixed to their hoods and the Certificate limited the company to the operation of one vehicle. Id. at 18.The Complainants noted that the Commission originally granted the rights that Oged currently has to Yellow Cab of Philadelphia under a single Certificate at Docket No. A-0010548. The Complainants stated that Yellow Cab’s single Certificate was converted to 800 individual Certificates after the enactment of the Act of June 19, 1980, P.L. 244, Act No. 69 (Act 69). The Complainants indicated that Act 69 provided that every Certificate for taxicab service in any city of the first class be deemed a single, sole Certificate for taxicab service for the operation of one vehicle in such service. Id. at 19 (citing Section 2 of Act 69 and Sun Cab Co. v. Pa. PUC, 561 A.2d 829 (Pa. Cmwlth. 1989)). The Complainants further explained that Oged’s rights were granted by Secretarial Letter dated July 7, 1992 (Respondent’s Exh. 1), which authorized the Respondent to operate three medallion taxicabs, P-802, P-803 and P-841. The Complainants noted that, after the effective date of Act 94, the Respondent filed a tariff with the Commission that removed the reference to the City in its territory description and deleted the one vehicle limit for each medallion. The Complainants asserted that the tariff changes were not properly approved by the Commission. Complainants’ M.B. at 20. The Complainants argued that Act 94 did not bifurcate Oged’s operations into two separate authorities simply because the Commission’s functions were bifurcated by Act 94. Id. at 27. The Complainants contended that the Commission granted Oged a right to operate an unlimited number of vehicles in the Complainants’ territory without having to follow the procedures set forth in Section 1103(a) of the Code, 66 Pa. C.S. § 1103(a). Complainants’ M.B. at 31-32. The Respondent averred that it has been a carrier authorized by the Commission to provide service in Delaware County since 1988, as set forth in its Certificate and 2009 tariff, and that authority was not amended or abandoned by Act 94. Oged’s M.B. at 8, 9. The Respondent explained that the restriction of one vehicle per Certificate was specific to the medallion program, which is only applicable in the City. The medallion is a property right. The Respondent contended that the only authority left with the Commission after the transfer of the City rights to the PPA was the authority outside of the City. The Respondent argued that the rights were bifurcated when Act 94 was enacted. According to the Respondent, because the restriction of one vehicle per Certificate is unique to Philadelphia, the removal of the restriction from the tariff did not require publication for authority outside of the City. Respondent’s M.B. at 10, Respondent’s R.B. at 7.The ALJ’s Initial Decision on RemandIn the Initial Decision on Remand, ALJ Fordham dismissed the Complaint, finding that the Complainants failed to satisfy their burden of proving that Act 94 did not bifurcate the Respondent’s authority or that the Respondent violated its tariff by operating more than one taxicab outside of the City. I.D. at 1. In reaching her conclusion, the ALJ initially addressed whether Act 94 bifurcated Oged’s original Commission-issued Certificate into two certificates, one issued by the Commission and one by the PPA. The ALJ determined that, based on the evidence in this case and the Commonwealth Court decisions, the regulation of taxicabs was bifurcated when Act 94 was passed: the PPA regulates the medallion taxicabs that the Respondent operates in the City, and the Commission regulates the taxicabs that the Respondent operates outside of the City. The ALJ noted that the Respondent pays assessments to the PPA for the taxicabs it operates in the City and pays assessments to the Commission for the taxicabs that it operates outside of the City. The ALJ also noted that the Respondent has separate tariffs for the taxicabs it operates in the City and the taxicabs it operates outside of the City. I.D. at 16. The ALJ stated that the Commonwealth Court determined that the Commission has jurisdiction over operations outside of the City and the PPA has jurisdiction over operations inside the City. I.D. at 15-16 (citing Germantown Cab Co. v. Pa. PUC, 97 A.3d 410 (Pa. Cmwlth. 2014) (Germantown Cab) and Bucks County Services, Inc. v. Philadelphia Parking Authority, 104 A.3d 604 (Pa. Cmwlth. 2014) (Bucks County)).The ALJ next addressed whether the Respondent followed the proper procedure when it removed the Philadelphia authority from its tariff on file with the Commission. The ALJ concluded that the Respondent was merely correcting the document based on Act 94. The ALJ found that the Complainants failed to sustain their burden of proving that, because the Respondent was restricted to one vehicle under the Medallion Act, the Respondent should not be permitted to operate more than one vehicle outside of the City currently. The ALJ stated that the Complainants failed to cite to a Statute, Regulation, or case that restricts taxicabs operating outside of the City to one vehicle per Certificate. The ALJ also stated that the Respondent provided evidence to show that the restriction only applies to taxicabs operating in the City, and this evidence was not refuted by the Complainants. Specifically, the ALJ noted that the Respondent produced operating authority issued by the Commission that allows it to operate at the 69th Street terminal and other areas outside of the City. The Respondent also presented inspection reports from the Commission’s enforcement officers to demonstrate that the Commission did not cite it for operating outside of its authorized service territory when the taxicabs were inspected at the 69th Street terminal or other parts of Delaware County. I.D. at 17.Exceptions and RepliesIn their General Exception, the Complainants state that the facts are undisputed and, accordingly, the Complainants do not have an evidentiary burden in this matter. The Complainants argue that the ALJ did not adequately address the legal issues that the Commonwealth Court directed the Commission to resolve but, instead, found that the Complainants failed to meet their burden of proof because they did not cite to a Statute or Regulation that restricts taxicabs operating outside of the City to one vehicle per Certificate. Exc. at 4. The Complainants aver that operating restrictions, such as the one vehicle limitation imposed on the Respondent, are imposed on carriers by the Commission pursuant to Section 1103(a) of the Code, 66 Pa. C.S. § 1103(a). Exc. at 4-5. As such, the Complainants aver that the ALJ was required to address whether the Commission and the Respondent were required to follow the procedure under Section 1103(a) of the Code in order to properly remove the vehicle restriction in this case. Exc. at 5. The Complainants claim that the ALJ did not determine whether the Respondent followed the proper procedure for effectuating the removal of the one vehicle restriction in this case. Id. at 6. In its Replies to Exceptions, the Respondent avers that the facts in this case are in dispute and the ALJ applied the facts to the law to address the Complaint. The Respondent states that the ALJ applied the appropriate burden of proof on the Parties and made a decision as instructed by the Commonwealth Court. R. Exc. at 4. The Respondent disagrees with the Complainants that Section 1103(a) imposes a one vehicle restriction. The Respondent states that the Commission has allowed the operation of multiple vehicles in the 69th Street terminal area, as evidenced by the Commission’s acceptance of its current unrestricted tariff, the open operation of the Respondent’s vehicles which are subject to enforcement inspections, and the Respondent’s payment of of assessments to the Commission and the filing of vehicle lists with the Commission for its applicable vehicles. Id. at 5. The Respondent agrees that the Commission does not have jurisdiction over medallion cabs, but explains that the vehicles in question are call and demand operators providing service outside the City pursuant to Commission authority. Id. at 5-6. The Respondent also explains that the one vehicle restriction was the result of the Medallion Act and the operation of vehicles in cities of the first class. The Respondent indicates that the repeal of the Medallion Act and the transfer of taxicabs operating in cities of the first class, as well as the PPA’s issuance of a new certificate for the City territory showing the one vehicle restriction, is evidence of this. Id. at 6. In their first Exception, the Complainants request that Finding of Fact No. 4 be amended. Finding of Fact No. 4 provides: “Ronald Winklevoss, Jr. is an owner and officer of all four of the named Complainants (2011 Tr. 10).” The Complainants state that Ronald Winkelvoss, Jr. is deceased. The Complainants aver that, when the Commission granted authority to the Complainants, Ronald Winkelvoss, Sr. was the sole shareholder and officer of the companies. The Complainants explain that, prior to this death, Ronald Winkelvoss, Jr. owned 49% of the stock in Sawink, Inc., and Ronald Winkelvoss, Sr. owned 51% of the stock, and the Commission’s records reflect the ownership interests described above. Exc. at 6-7. In their second Exception, the Complainants object to Finding of Fact No. 5 because it omits the restriction on the Respondent’s operating authority. Finding of Fact No. 5 provides as follows: “The Respondent is a public utility holding a certificate of public convenience that authorizes it to transport, as a common carrier, persons, upon call or demand in several areas including at the 69th Street terminal located in the township of Upper Darby, Delaware County (2011 Tr. 40).”The Complainants also object to this Finding of Fact on the basis that it states that the Respondent has operating in rights in several territories. The Complainants state that the Respondent was granted rights to operate in a single territory which includes all of Philadelphia and parts of Delaware and Montgomery Counties. Exc. at 7. Similarly, the Complainants object to Finding of Fact No. 8 to the extent that it suggests the Respondent’s operating authority in the City was separately granted, apart from its rights to operate elsewhere in the Commonwealth. The Complainants aver that the Commission granted the Respondent operating rights in a single Order and all rights were subject to the one vehicle limitation. The Complainants argue that Act 94 did not bifurcate the Respondent’s operating rights and did not affect the operating rights the Commission granted to the Respondent. Id. at 8. In reply, the Respondent states that Act 94 did bifurcate the authority because it transferred regulatory control of taxis in the City to the PPA but did not transfer any authority to regulate point to point taxi service outside of the City. The Respondent indicates that the PPA continues to employ the one vehicle restriction which has always applied to taxicabs in cities of the first class since the implementation of the Medallion Act. R. Exc. at 8. In their third Exception, the Complainants contend that Findings of Fact Nos. 9 and 10 are not supported by substantial evidence. Id. Finding of Fact No. 9 is as follows: “The Philadelphia Parking Authority issued the Respondent a PPA certificate (No. 1000740-01) for its Philadelphia medallions (2011 Tr. 40; Tr. 45).” Finding of Fact No. 10 is as follows: “The Philadelphia Parking Authority certificate of public convenience was issued when the Philadelphia Parking Authority was given jurisdiction for call and demand transportation in the City of Philadelphia (2011 Tr. 40; Tr. 45).” The Complainants state that the PPA certificate was not offered into evidence, and there is no evidence to support a conclusion as to what type of service the PPA authorized the Respondent to provide or whether that service is subject to any vehicle restrictions. Id. at 8-9. In response, the Respondent averred that the owner and President of Oged, Joseph Marino, testified that the PPA granted Oged a certificate and that Oged operates four taxicabs with medallions in the City. R. Exc. at 9. In their fourth Exception, the Complainants aver that Finding of Fact No. 12 is objectionable, because whether the Respondent is regulated by the Commission is a Conclusion of Law. Exc. at 9. Finding of Fact No. 12 provides the following: “The Respondent is regulated by the Pennsylvania Public Utility Commission because it has authority to provide service outside of Philadelphia (2011 Tr. 40; Tr. 41, 42).” The Complainants contend that the Commission’s powers under the Medallion Act to regulate medallion taxicabs, including those with operating territory outside of the City, were repealed by Act 94 and the Commission no longer has power to regulate medallion taxicabs regardless of where they operate. Id. at 9-10. In its Replies to Exceptions, the Respondent states that it had medallions that were transferred to the control of the PPA through Act 94 and maintain a one vehicle restriction, and the territory outside of the City is subject to regulation by the Commission, which does not maintain any such restrictions on vehicles. R. Exc. at 10. In their fifth Exception, the Complainants argue that Finding of Fact No. 13 is incorrect to the extent it suggests that the Respondent’s operating rights were amended to remove the one vehicle restriction. Finding of Fact No. 13 states as follows: “The Respondent’s certificate of authority from the Commission was amended on March 22, 1990, and July 17, 1992, adding additional vehicles to their authority (Tr. 41-42, R. Exs. 1, 2 on Remand).” The Complainants state that, if the Commission authorized the Respondent to operate additional vehicles, such authorization was granted pursuant to an application to transfer existing medallion taxicab rights subject to the same one vehicle limitation as all other medallion taxicab operating rights of the Respondent and would have been accompanied by the purchase of a taxicab medallion. Id. at 10.In response, the Respondent indicates that it was issued a Certificate from the Commission, and it maintains that Certificate. R. Exc. at 10. The Respondent states that any restriction that was imposed on taxicabs in a city of the first class was transferred with the medallion and eliminated from the Commission’s authority when the Medallion Act was repealed. Id. at 10-11. In their sixth and seventh Exceptions, the Complainants disagree with Findings of Fact Nos. 14 and 15. Finding of Fact No. 14 states the following: “When the Pennsylvania General Assembly transferred the authority for regulating taxicab service in Philadelphia to the Philadelphia Parking Authority, through Act 94 of 2004, the Commission did not terminate the Respondent’s certificate of public convenience (2011 Tr. 41-42; Tr. 41; R. Exs. 1, 2 on Remand).” Finding of Fact No. 15 states the following: “The Respondent operates six vehicles under its current Commission authority (2011 Tr. 44).” The Complainants contend that the Commission did not have the power to terminate the Respondent’s Certificate because the Respondent did not retain authorization to provide taxicab service subject to the Commission’s jurisdiction or regulatory authority after Act 94 became effective. Id. at 10-11. In reply, the Respondent states that it maintains a Certificate to operate under the Commission’s jurisdiction in the territory outside of the City and under the PPA’s certificate to operate medallion taxicabs within the City. R. Exc. at 11. In their eighth Exception, the Complainants object to Findings of Fact Nos. 17 and 18 on the grounds that the Commission did not have jurisdiction or statutory power to approve an amendment to the operating rights or tariff of a medallion taxicab company after the effective date of Act 94. Finding of Fact No. 17 is as follows: “The Respondent amended its tariff in 2009 to reflect the non-Philadelphia service territory and removed the restrictions for operations outside of Philadelphia (2011 Tr. 52, 59).” Finding of Fact No. 18 is as follows: “Pursuant to the tariff accepted by the Commission in 2009, there are no restrictions on the number of vehicles the Respondent can operate outside of Philadelphia (2011 Tr. 61).” The Complainants aver that, even if the Commission had such jurisdiction or power, it did not follow its own procedures in approving or accepting such changes to the Respondent’s operating rights or authority. Exc. at 11. The Complainants assert that they were entitled to notice and an opportunity to be heard through the Commission’s protest procedures in connect with an elimination of the one vehicle requirement, because it represented a fundamental change to the Respondent’s operating authority and adversely impacted the Complainants’ operating rights. Id. at 12. In its Replies to Exceptions, the Respondent contends that the restriction in this case was placed upon it by statute, and the restriction has been transferred along with its vehicles that are subject to the PPA’s jurisdiction. The Respondent avers that there has not been any change in its Commission-issued Certificate and that any change was authorized by the Commission consistent with the public interest. R. Exc. at 12. Ninth, the Complainants except to Findings of Fact Nos. 21-28, as these Findings suggest that the Respondent’s history of compliance with the Commission’s standards and the Commission’s enforcement of such standards is relevant to the issue of whether the Commission has jurisdiction and statutory power to regulate medallion taxicabs after Act 94 was enacted. Findings of Fact Nos. 21-28 provide the following: 21.The Respondent files vehicle lists with the Commission annually along with its assessments (2011 Tr. 67). 22.The Respondent pays an assessment to the Philadelphia Parking Authority in addition to paying an assessment to the Commission (2011 Tr. 67). 23.The Respondent files an E Form with the Commission each year (2011 Tr. 67). 24.The vehicles operated by the Respondent are inspected by the Commission on a regular basis (2011 Tr. 67; R. Exs. 5, 6, 7 on Remand). 25.On August 30, 2013, a Commission enforcement officer inspected two of the Respondent’s taxicabs in Delaware County and did not find any violations (R. Ex. 5 on Remand).26.On October 8, 2013, a Commission enforcement officer inspected one of the Respondent’s taxicabs at 69th Street terminal and did not find any violations (R. Ex. 6 on Remand).27.On October 8, 2013, a Commission enforcement officer inspected one of the Respondent’s taxicabs at 69th Street terminal and found a violation because the rear window was inoperable and the rear light was inoperable (R. Ex. 7 on Remand).28.When Commission enforcement officers have inspected the Respondent’s vehicles at the 69th Street terminal, the Respondent has not been charged with operating illegally at that location (2011 Tr. 67; R. Exs. 5, 6, 7 on Remand).Similarly, in their tenth Exception, the Complainants disagree with Conclusion of Law No. 1 to the extent that it suggests the Commission has jurisdiction and statutory power to regulate the Respondent or any other medallion taxicab. Id. Conclusion of Law No. 1 states as follows: “The Commission has jurisdiction over the parties and the subject matter of this proceeding. 66 Pa. C.S. § 701.” In their eleventh Exception, the Complainants argue against Conclusion of Law No. 2, which provides the following: “The Complainants have the burden of proof in this matter pursuant to 66 Pa. C.S. § 332(a).” The Complainants aver that they met their burden of proof in this matter because there were no facts in dispute, and the evidentiary burden was automatically satisfied. The Complainants disagree with the ALJ’s application of the undisputed facts to the law. Id. at 13. In their twelfth Exception, the Complainants object to Conclusion of Law No. 4. Conclusion of Law No. 4 is as follows:Act 94 bifurcated OGED’s original Commission issued certificate of public convenience into two certificates, one issued by the Commission and one by the Parking Authority. The Commission has jurisdiction over taxicab operations outside of Philadelphia and the Philadelphia Parking Authority has jurisdiction over taxicab operations inside Philadelphia. Germantown Cab Company v Pa. Pub. Util. Comm’n, 97 A.3d 410; 2014 Pa. Commw. LEXIS 374 (Pa.Cmwlth. 2014). As the Complainants have previously argued, they state that Act 94 did not affect the Respondent’s operating rights or bifurcate the Respondent’s operating rights. Id. The Complainants argue that Act 94 and Bucks County support their position that Act 94 did not affect the operating rights of carriers in existence when Act 94 became effective.In reply, the Respondent avers that Act 94 transferred regulation of taxicab service in cities of the first class to the PPA and left the territory outside of the City to regulation by the Commission. The Respondent states that Act 94 did not address existing carriers’ rights, because those rights were not altered and contain the same geographic territory as they did prior to Act 94, although those rights are now regulated by two separate regulatory authorities. R. Exc. at 15. In their thirteenth Exception, the Complainants except to both Conclusions of Law No. 5 (as a result of a typographical error, there are two Conclusions of Law No.?5). They provide as follows: “The Complainants failed to prove that the Respondent violated the Commission’s regulations or the Public Utility Code, that it transferred its authority without the Commission’s approval or that it operated its taxicabs outside of its certificated service territory,” and “The Complainants failed to sustain their burden of proof.”The Complainants argue that these conclusions are not supported by substantial evidence and misconstrue the issues presented. Id. at 14. The Complainants state that whether the Respondent violated the Code or the Commission’s Regulations is not a matter of fact but the application of the law to the undisputed facts in this case. The Complainants indicate that the Commission granted the Respondent authority to provide taxicab service in Philadelphia and parts of Delaware and Montgomery Counties subject to a one vehicle limitation. The Complainants aver that the record does not contain any evidence that the Respondent applied to the Commission to remove this restriction, that the Complainants were provided with notice and an opportunity to protest the proposed change in the Respondent’s operating rights, or that the Respondent established that elimination of the restriction was consistent with the Code’s standards relating to public need. Id. at 15. In response, the Respondent states that the Commission granted the Respondent a Certificate with several folders and each folder had a one vehicle limitation pursuant to the Medallion Act. The Respondent asserts that, with the repeal of the Medallion Act and the transfer of the medallions with the one vehicle restriction to the PPA, the Respondent retained an unrestricted Commission territory, and the Commission requested that Oged revise its tariff to eliminate the City territory and accompanying restrictions. The Respondent contends that there was never a change in its operating rights that would have required publication. R. Exc. at 17. DispositionBecause many of the Complainants’ Exceptions pertain to the issues the Commonwealth Court directed us to address on remand, we will discuss the disposition of the Exceptions according to subject matter, focusing on the issues on remand.Whether Act 94 Bifurcated Oged’s Original Commission-Issued CertificateBased on our review of the record, the applicable law, and the Parties’ positions, we agree with the ALJ that the Respondent’s Certificate was bifurcated by Act 94 and, accordingly, the Respondent is subject to jurisdiction of both the Commission and the PPA. As there were disputed issues of fact in this case, the ALJ properly applied the facts on record to the legal issues to be decided. Additionally, to the extent that facts were in dispute relating to whether the Respondent’s operations in the 69th Street terminal territory were lawful, the Complainants had the burden of proving these allegations under Section 332(a) of the Code. A careful review of the Respondent’s Certificate and the related Secretarial Letters and Orders, as well as the Respondent’s testimony, reflects that the vehicle number limitations on the Respondent’s operating authority corresponded with the medallion taxicabs that the Respondent was authorized to operate. By Secretarial Letter dated January 30, 2004, the Commission authorized Oged to provide service in four medallion taxicabs, through the purchase of medallions, which were assigned numbers P-103, P-544, P-1402, and P-1405. The Secretarial Letter also stated that the service in the City of Philadelphia was limited to one vehicle. Respondent’s Exh. 4. The logical conclusion is that the one vehicle limitation applied to each of the four medallion taxicabs, not to one vehicle total. Likewise, by Secretarial Letter dated July 7, 1992, the Commission granted the Respondent authority to operate three specific medallion taxicabs, P-802, P-803, and P-841. Respondent’s Exh. 1. Because a medallion was required for each vehicle that the Respondent operated in the City, the Respondent was limited to providing service in three vehicles at that time. By Commission Order entered March 29, 1990, Oged was granted authority to operate one medallion cab, TX-1488, and was limited to the operation of that one vehicle. Respondent’s Exh. 2. The law continues to maintain a restriction that all vehicles operated in the City must have a medallion affixed to each vehicle. See 53 Pa. C.S. § 5714(a)(1). As will be discussed in more detail herein, the Commission does not have similar restrictions on the number of vehicles that may be operated by common carriers. Based on the evidence and the applicable Commonwealth Court decisions, it is clear that the authority of a taxicab, such as Oged, was bifurcated when Act 94 became effective. The Commonwealth Court explained that, by enacting Act 94, the General Assembly repealed the former Medallion Act, under which the Commission regulated all taxicab service in Pennsylvania, including in the City, and reenacted and amended the Parking Authorities Law by adding Chapter 57, thereby transferring jurisdiction and regulatory oversight over taxicab services in the City from the Commission to the PPA. Germantown Cab, 97 A.3d at 415. The Commonwealth Court clarified that the Commission retained jurisdiction over the taxicab service that was outside of the City. Id. at 412. Similarly, in Bucks County, the Commonwealth Court stated that the language in Act 94, specifically Section 5714(d)(2), effected the transfer by operation of law. The Commonwealth Court stated that the PPA was not required to issue a new certificate to taxicabs that had authority to provide service in the City prior to the passage of Act 94. Bucks County, 104 A.3d at 609. Accordingly, we agree with the ALJ that the Commonwealth Court has determined that Act 94 did not change the operations of partial-rights taxicabs and that the Respondent’s Certificate was bifurcated as a matter of law. Additionally, because there is no legal requirement that the PPA issue the Respondent a certificate, it is not necessary for us to examine whether or the Respondent has a certificate from the PPA as part of the record in this case, and this factor is not dispositive of our jurisdiction under the Respondent’s Commission-issued Certificate. Therefore, the Complainants’ Exceptions pertaining to this issue are denied. Whether Oged was Required to Obtain Commission Approval to Amend its Service Area to Remove Philadelphia In this case, the Complainants submitted the Respondent’s tariff which was effective July 27, 2007 (2007 Tariff). Complainant’s Exh. 1. The 2007 Tariff contained the City within the Respondent’s operating territory and limited the Respondent’s operating authority to “the use of one vehicle.” The Respondent submitted its current tariff, effective October 30, 2009 (2009 Tariff). The 2009 Tariff does not contain the City within the Respondent’s operating territory and does not contain the one vehicle limitation that was in the 2007 Tariff. The Complainants argue that the Respondent did not follow the appropriate Commission procedure in order to effectuate this tariff change and that the Respondent was required to follow Section 1103 of the Code before operating outside of the City using more than one vehicle. Upon review, we agree with the ALJ’s conclusions that the Complainants failed to demonstrate that the Respondent did not follow the proper procedure when it removed the City and the one vehicle restriction from its Commission authority and that the Respondent presented evidence to demonstrate that the restriction in its 2007 Tariff only applied to the City. Additionally, we find that the ALJ did not err in considering the Respondent’s testimony and submission of inspection reports as evidence that the Respondent was not cited for operating outside of its territory when the taxicabs were inspected at the 69th Street terminal and other areas in Delaware County. See Respondent’s Exhs. R-5, R-6, and R-7. Nevertheless, some further legal analysis is necessary to answer the issue on remand from the Commonwealth Court regarding whether the proper procedure was followed in this case, or whether a separate or amended Certificate issued by the Commission was required in order for Oged to provide service outside of the City. Section 1102(a)(1)(i) of the Code, 66 Pa. C.S. § 1102(a)(1)(i), requires a public utility to obtain a Certificate if that utility is offering a “service of a different nature or to a different territory than that authorized by” its Certificate granted by the Commission. As discussed above, the Respondent already had a Certificate to provide service in areas outside of the City, and the nature and territory of this authorized service did not change by law when Act 94 transferred jurisdiction over City transportation to the PPA. Because the vehicle restrictions pertained only to the medallion service the Respondent was authorized to provide in the City, the Respondent’s authority to operate outside of the City was not altered. As the ALJ indicated, the Respondent amended its tariff on file with the Commission to reflect the transfer of authority to the PPA. Moreover, the Commission does not generally allow for restrictions pertaining to the number of vehicles a taxicab company may operate. The Commission has rejected limitations on the facilities of common carriers, including limitations on the number of vehicles that a carrier may use. Application of Jeffrey William Bratton, 1993 Pa. PUC Lexis 64; Application of Stephen M. Galizia, 1987 Pa. PUC Lexis 275. Based on this discussion, we will modify the ALJ’s Initial Decision on Remand and grant the Complainants’ Exceptions to the extent they argued that more legal analysis was necessary to address the issues on remand from the Commonwealth Court. ConclusionBased on our review of the record, the applicable law, and the Exceptions and the Replies thereto, we shall grant, in part, the Complainants’ Exceptions and modify the ALJ’s Initial Decision on Remand, consistent with this Opinion and Order; THEREFORE,IT IS ORDERED:1.That the Exceptions filed by Ronald Cab, Inc. t/a Community Cab, Dee Dee Cab, Inc. t/a Penn-Del Cab, Shawn Cab, Inc. t/d/b/a Delaware County Cab Co., and Sawink, Inc. t/d/b/a County Cab Co. on November 24, 2015, are granted, in part. 2.That the Initial Decision on Remand of Administrative Law Judge Cynthia Williams Fordham, issued November 4, 2015, is modified, consistent with this Opinion and Order.3.That the Complaint filed by Ronald Cab, Inc. t/a Community Cab, Dee Dee Cab, Inc. t/a Penn-Del Cab, Shawn Cab, Inc. t/d/b/a Delaware County Cab Co., and Sawink, Inc. t/d/b/a County Cab Co., at Docket No. C-2010-2167828, is dismissed. 4.That the proceedings at Docket Nos. C-2010-2167828 and M-2013-2381012 are marked closed.288798011811000BY THE COMMISSION,Rosemary ChiavettaSecretary(SEAL)ORDER ADOPTED: May 19, 2016ORDER ENTERED: May 19, 2016 ................
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