A-00100713C9806; o; Posten v. City Limousine

							                                PENNSYLVANIA
                          PUBLIC UTILITY COMMISSION
                           HARRISBURG, PA 17105-3265

                                                       Public Meeting held March 2, 2000

Commissioners Present:

       John M. Quain, Chairman
       Robert K. Bloom, Vice Chairman
       Nora Mead Brownell
       Aaron Wilson, Jr.
       Terrance J. Fitzpatrick

Posten Taxi, Inc.                                                A-00100713C9806

        v.

Robert Burgit, t/d/b/a City Limousine

                                OPINION AND ORDER

BY THE COMMISSION:

              Before the Commission for consideration are the Exceptions (Exc.) filed by
Posten Taxi, Inc. (Complainant) on July 9, 1999, to the Initial Decision of Administrative
Law Judge (ALJ) Herbert S. Cohen which was issued on June 22, 1999, relative to the
above-captioned proceeding. On July 14, 1999, Robert Burgit, t/d/b/a City Limousine
(Respondent) filed Reply Exceptions (R.Exc).


                               History of the Proceedings


              The instant Complaint was filed on September 14, 1998, wherein it was
alleged that, among other things, (1) the Respondent was providing direct call or demand
taxi service, and not limousine service; (2) the Respondent was not charging the rates
established in its tariff on file with this Commission; and (3) the Respondent was
“doubling up” on passengers (that is, taking more than one (1) passenger at a time when
the first passenger was entitled to exclusive use of the vehicle) in providing service. The
Respondent filed an Answer, pro se, on September 28, 1998. On November 19, 1998, the
Complainant filed an Amended Complaint. (I.D., pp. 1-2).


              On December 16, 1998, the ALJ conducted a Prehearing Conference.
Evidentiary hearings which were originally scheduled for January 28 and 29, 1999, were
postponed until March 17 and 18, 1999, at the request of the Complainant’s counsel. At
the evidentiary hearing held on March 17, 1999, the Complainant presented the testimony
of three witnesses and sponsored five (5) Exhibits. The Respondent, now represented by
counsel, presented the testimony of one (1) witness and sponsored one (1) Exhibit. (I.D.,
pp. 2-3). The record consists of 70 pages of testimony, the above-mentioned Exhibits, as
well as Briefs submitted by both Parties.


              In the Initial Decision, the ALJ recommended that the Commission sustain
the Complaint, in part, with respect to the allegation of “doubling up” of fares, and fine
the Respondent $500.00 for this violation of the Public Utility Code. The ALJ deter-
mined that all other allegations in the Complaint should be dismissed. (I.D., pp. 11-13).
As mentioned above, the Complainant filed Exceptions, to which the Respondent filed
Reply Exceptions.


                                        Discussion


              In the Initial Decision, the ALJ made specific Findings of Fact and
Conclusions of Law. (I.D., pp. 3-4, and 12-13, respectively). We incorporate those
herein by reference, unless modified or reversed, expressly or by necessary implication,
by this Opinion and Order.


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              We further note that any issue or Exception which we do not specifically
address has been duly considered and will be 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 Corporation v. Pennsylvania Public
Utility Commission, 155 Pa. Commonwealth Ct. 537, 625 A.2d 741 (1993); also see,
generally, University of Pennsylvania v. Pennsylvania Public Utility Commission,
485 A.2d 1217 (Pa. Cmwlth. 1984).


              Also, before discussing the Exceptions, we will review the requirements of
law regarding the burden of proof in proceedings before this Commission. As the
proponent of a rule or order of this Commission, the Complainant in this proceeding
bears the burden of proof. (66 Pa. C.S. §332(a)). The Pennsylvania Supreme Court has
held that the term "burden of proof" means a duty to establish a fact by a preponderance of
the evidence. Se-Ling Hosiery v. Margulies, 364 Pa. 45, 70 A.2d 854 (1950). The term
"preponderance of the evidence" means that one (1) party has presented evidence which is
more convincing, by even the smallest amount, than the evidence presented by the other
side. If a party has satisfied its burden of proof, it must then be determined whether the
opposing party has submitted evidence of "co-equal" value or weight to refute the first
party's evidence. Morrissey v. Commonwealth of Pennsylvania, Department of Highways,
424 Pa. 87, 225 A.2d 895 (1987).


              Furthermore, any order of this Commission must be based on substantial
evidence. Dutchland Tours, Inc. v. Pennsylvania Public Utility Commission, 19 Pa.
Commonwealth Ct. 1, 337 A.2d 922, 925 (1975). The term “substantial evidence” has
been defined by the Pennsylvania courts as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion. More is required than a mere trace of
evidence or a suspicion of the existence of a fact sought to be established. Murphy v.
Department of Public Welfare, White Haven Center, 85 Pa. Commonwealth Ct. 23,
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480 A.2d 382, 386 (1994); Erie Resistor Corporation v. Unemployment Compensation
Board of Review, 194 Pa. Super. 278, 166 A.2d 96, 97 (1961).


              In its Exceptions, the Complainant argues that the ALJ erred in concluding
that the Complainant’s evidence failed to establish that the Respondent has violated the
provisions of its tariff. The Complainant refers to page 12 of the Initial Decision,
wherein the ALJ observed that the Respondent’s rates are based on the time, including
waiting time, involved in making a particular trip, which can vary from trip to trip. While
the Complainant agrees with this observation, the Complainant points out that the
Respondent’s tariff provides for a charge of $12.00 per hour based on actual time of
service plus waiting time. The Complainant asserts that this translates into a rate of
20 cents per minute. The Complainant further notes that the Respondent’s tariff provides
for a minimum charge of $1.50 per trip. (Exc., pp. 1-2).


              The Complainant submits that it presented the testimony of three (3)
witnesses and established that the Respondent’s charges for his service are completely
arbitrary and bear no resemblance to its tariff provisions and are not explained by waiting
time. The Complainant further asserts that the evidence showed that the Respondent’s
drivers quote the rate for a trip “up front” at a time when they cannot possibly know the
actual time which will be required until the trip has been completed. To support these
contentions, the Complainant reviews the evidence of record which it believes requires
this conclusion. (Exc., pp. 2-4).


              In its Reply Exceptions, the Respondent argues that the Complainant’s
evidence completely fails to establish the time involved in the trips and whether traffic,
weather or any other variant was involved. The Respondent contends that the ALJ’s
conclusion is based on the evidence of record which established that driving from one
point to another in a metropolitan area required a different amount of time on separate
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occasions. The Respondent submits that the Complainant’s Exceptions misconstrue the
language of the Initial Decision and do not overcome the weakness of the record.
(R.Exc., pp. 1-2).


              The Respondent further asserts that the Complainant’s witness, Mr. Bruce
Bates, was unable to testify to the “dispatching time” for the vehicles and kept track only
of the time during which he was physically in the vehicle. (R.Exc., p. 3). The
Respondent also disputes the evidence presented by the Complainant’s second witness,
Ms. Melissa Rodriguez, regarding the fare which she was charged. (R.Exc., p. 4).


              The Respondent contends that the evidence presented by Mr. William
Cook, the Complainant’s President, in the form of the audio and videotape of an alleged
illegal act of transportation, and the testimony related thereto is not evidence upon which
we can rely. Specifically, the Respondent argues that the tape does not indicate the exact
time that the taximeter in Mr. Cook’s cab is started when the Respondent’s vehicle
arrives, and does not take into consideration waiting time. The Respondent asserts that
the “transcript” of the tape is inherently inaccurate. For these reasons, the Respondent
argues that the Complainant’s Exceptions should be denied. (R.Exc., pp. 6-7).


              In our consideration of this issue, we note that the Respondent’s assertion,
on Exception, that this Commission has reviewed its method of charging rates is not
substantiated by any evidence of record. The Respondent has not provided or referred to
any order or other action of this Commission wherein we determined that its method of
charging its tariff rates is reasonable and proper. Accordingly, we determine that this
assertion is erroneous.


              In his analysis of the record in this proceeding, regarding the Respondent’s
method of charging its tariff rate, the ALJ concluded that none of the Complainant’s
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witnesses presented evidence sufficient to conclusively establish that the Respondent has
collected rates which vary from its tariff. The ALJ further concluded that the Respondent
has provided a satisfactory explanation of its use of “up front” charges. Therefore, the
ALJ recommended that this allegation be dismissed, although he recommended that the
Complaint be sustained with regard to the allegation of non-exclusive service and that the
Respondent should be fined $500.00. (I.D., pp. 12-13).


              Before reviewing the record in this proceeding regarding the issues of
upfront rates and adherence to the tariff, we note that Section 1303 of the Public Utility
Code, 66 Pa. C.S. §1303, states, in pertinent part, that:


              No public utility shall, directly or indirectly, by any device
              whatsoever, or in anywise, demand or receive from any
              person, corporation or municipal corporation a greater or less
              rate for any service rendered or to be rendered by such public
              utility than that specified in the tariff of such public utility
              applicable thereto. The rates specified in such tariff shall be
              the lawful rates of such public utility until changed, as
              provided in this part.

              We observe that the Respondent’s officially-filed tariff with this
Commission states that the Respondent’s rate for Limousine and Luxury Sedan Service,
other than weddings and other religious occasions, funerals, proms or private charter, is
the following:

              $12.00 Per Hour Chargeable in Fractions of The Hour Based
              Upon Actual Time of Service, Plus Waiting Time. There Is a
              Minimum $1.50 Charge For This Service.

(Certificate No. A-100713, F1, CALL AND DEMAND-PA. P.U.C. NO. 1;
Complainant’s Exh. C-2).


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              Based on our review of the record on this issue, we note that that the
Complainant presented the Stipulated Testimony of Brian Malina. Mr. Malina is a
reporter for the Wilkes-Barre Times-Leader, and testified that he took four (4) trips, each
with the Complainant and the Respondent during late December 1998, or early January
1999. Mr. Malino’s Stipulated Testimony indicates the following charges: (1) from
Turkey Hill at South Main and Blackman Streets to Boscov’s, the Respondent charged
him $3.00, while the Complainant charged him $3.75; (2) from Public Square to Wilkes-
Barre General Hospital, Respondent charged $4.00, while the Complainant charged
$3.55; (30 from Public Square to North Empire Street, the Respondent charged $3.00,
while the Complainant charged $3.95; and (4) from the Times-Leader, 15 North Main
Street, to Winola Avenue in Kingston, the Respondent charged $4.00, while the
Complainant charged $3.75. (Tr., pp. 18-19).


              Mr. Malino’s Stipulated Testimony further stated, in pertinent part, that:

              Further, that when a City Limousine driver picks up a cus-
              tomer, the driver radios to the dispatcher, who then times the
              trip. When the customer arrives at a destination, the driver
              radios to the dispatcher, who tells the driver how much to
              charge, according to Mr. Burgit.




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                But that doesn’t happen all the time. On two of the four trips
                Times-Leader took in City Limousines, the dispatcher told the
                driver what to charge before the ride started.

(Tr., p. 19).


                We agree with the Complainant that, if the Respondent were establishing its
charges upfront without reconciling them with its tariff rates at the end of the trip, that
would be a violation of the Respondent’s tariff since the charges must be based on the
actual time of the trip plus waiting time. However, with respect to Mr. Malina’s
Stipulated Testimony, the evidence of record fails to contain the actual time elapsed
during the trips, and whether there was any waiting time, as specified by the Respondent’s
tariff. Likewise the evidence presented by the Complainant’s witnesses Bates and
Rodriguez do not provide sufficient evidence to establish upfront charges which were not
in compliance with the actual tariffed charges based on actual time involved in the service
and waiting time. However, we concur with the ALJ’s conclusion that the evidence
presented by Ms. Rodriguez is sufficient to establish that the Respondent has performed
service on a non-exclusive basis and that this violation warrants the imposition of a fine
of $500.00.


                Other evidence regarding upfront charges was provided by Mr. William
Cook, the Complainant’s President. Mr. Cook provided testimony and an audio-video
tape at Complainant’s Exhibit No. 5. However, before addressing the information
contained at Exhibit C-5, we will address the issue of the admissibility of Exhibit C-5, in
light of the Respondent’s challenge to its admission into the record in this proceeding.
Essentially, the Respondent asserts that the tape is inaccurate and compares “apples and
oranges since the City Limousine tariff includes actual waiting time.” (Respondent Brief,
p. 9).


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              Significantly, at note 3, page 9 of its Brief, the Respondent pointed out that
“the tape is an interception of a radio transmission for further private use and benefit of
Mr. Cook. As such, it is an illegal interception and the divulging or publishing of any
such information is a violation of Section 705 [sic] of the Communications Act,
47 U.S.C. §605. This evidence is illegal and cannot be considered.”


              We agree with the Respondent that the videotape should not be considered
as admissible evidence in our disposition of this proceeding. However, our decision for
excluding the evidence is not based on an analysis of the federal Communications Act.
Rather, we are concerned that the audio portion of the videotape was obtained through
Mr. Cook’s use of a scanner in his taxicab which enabled him to hear the Respondent’s
dispatcher. Using the audio portion of the video obtained in this manner is, in our view,
an interception of a voice transmission which is not proper according to Pennsylvania
law.


              The Pennsylvania Wiretapping and Electronic Surveillance Control Act
allows criminal defendants to move for the suppression of tape recordings which were
unlawfully intercepted by private citizens. See Commonwealth v. DeBlase, 357 Pa.
Super. 71, 74, 515 A.2d 564, 566 (1986) (interpreting 18 Pa. C.S.A. §5721 (Purdon
1983)). This Act defines the word "intercept" as an "[a]ural acquisition of the contents of
any wire or oral communication through the use of any electronic, mechanical or other
device." 18 Pa. C.S.A. §15702.


              Even in the context of a civil proceeding, any sound component of
proffered evidence, if obtained under a situation which implicates the Pennsylvania
Wiretap Act, is not admissible. See generally, Pa. PUC v. The Bell Telephone Co.,



                                              9
529 Pa. 523, 605 A.2d 1198 (1992), 130 PUR 4th 280 (1992) (Caller ID Proceeding). 1
Rather than presenting evidence where a videotape has sound which is a part of the
“source sound” which was subject to the videotape, Mr. Cook acquired the aural portion
of the videotaped sound through use of the scanner in his taxi. As noted, it was through
use of his scanner to hear and record the Respondent’s dispatcher that the sound portion
was obtained.


                Based on the foregoing, we find that the sound portion of the videotape was
obtained in violation of Pennsylvania law and has permeated the visual portion of the
evidence so as to be inseparable. We find the entire videotape to be subject to exclusion,
and we will not consider it. This conclusion also applies to the issue of adherence to
tariff, infra, as well as the issue of upfront charges which we are discussing here. In
considering the evidence of record regarding an illegal upfront charge, we conclude that
the Respondent has not presented substantial, probative and competent evidence to meet
its burden of proof regarding this allegation.


                With regard to the allegations regarding the Respondent’s failure to abide
by its tariff, the Complainant also provided the testimony of Mr. Bruce Bates, as well as
the testimony and audio-video tape presented by Mr. Cook which we found to be
inadmissible, supra. Mr. Bates provided information concerning specific instances of
transportation contained in the Complainant’s Exhibit C-3. In reviewing all of the
evidence with respect to alleged tariff violations, the ALJ stated:

                I do not believe [either] of the two customers testifying for
                Complainant conclusively established an explanation for
                variances in charges to the same destination. Likewise, I

       1
               We do not consider the more difficult question of whether sound
contemporaneously recorded with a video camera is inadmissible based on Pennsylvania
anti-wire tap law.
                                               10
                 believe respondent satisfactorily explained the “up front”
                 charge allegation. However, I believe Complainant
                 established via the testimony of Melissa Rodriguez, the
                 respondent “doubled up” passengers, rather than adhering to
                 its exclusive use requirement.

(I.D., p. 12).


                 We concur with the finding of the ALJ relative to this issue. We have
examined the evidence at Exhibit C-3 and find it to be insufficient to establish that the
Respondent did not adhere to its tariff. Accordingly, this Exception is denied.


                 Based on our analysis above of the issues in this proceeding, we conclude
that the Respondent violated the Public Utility Code, as set forth herein, warranting the
imposition of a fine of $500.00; THEREFORE,


                 IT IS ORDERED:


                 1.    That the Exceptions filed by Posten Taxi, Inc., the Complainant, on
July 9, 1999, to the Initial Decision of Administrative Law Judge Herbert S. Cohen which
was issued on June 22, 1999, are denied, in part, consistent with this Opinion and Order.


                 2.    That the Initial Decision of Administrative Law Judge Herbert S.
Cohen is adopted, consistent with this Opinion and Order.


                 3.    That the Complaint filed against Robert Burgit, t/d/b/a City
Limousine, the Respondent, on September 14, 1998, at Docket No. A-00100713C9806, is
sustained, consistent with this Opinion and Order.



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              4.     That the Respondent shall pay a civil penalty of $500.00 as provided
for in Sections 2404 and 3301 of the Public Utility Code, 66 Pa. C.S. §§2404 and 3301, by
certified check or money order within twenty (20) days after entry of this Opinion and
Order and forwarded to:

                     Pennsylvania Public Utility Commission
                     P.O. Box 3265
                     Harrisburg, PA 17105-3265


              5.     That the Respondent shall cease and desist from further violations of
the Public Utility Code and the Commission's regulations.

                                                  BY THE COMMISSION,



                                                  James J. McNulty
                                                  Secretary

(SEAL)

ORDER ADOPTED: March 2, 2000

ORDER ENTERED:




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