__________

Charlotte R. Lane
Dodson, Riccardi & Lutz
Charleston, West Virginia
Attorney for Harris Transfer and Bridgeport Paving & Excavating
Appellants in No. 21216

Samuel F. Hanna
Hanna & Hanna
Charleston, West Virginia
Attorney for Browning-Ferris Industries of West Virginia
Appellant in No. 21217

Richard M. Allen
Charleston, West Virginia
Attorney for Public Service Commission of West Virginia
Appellee in Nos. 21216 & 21217

Charles D. Perfater
Charleston, West Virginia
Attorney for Bridgeport Disposal, Inc.
Appellee in Nos. 21216 & 21217

This Opinion was delivered PER CURIAM.

        1. "In reviewing a Public Service Commission order, we will first determine whether the Commission's order, viewed in light of the relevant facts and of the Commission's broad regulatory duties, abused or exceeded its authority. We will examine the manner in which the Commission has employed the methods of regulation which it has itself selected, and must decide whether each of the order's essential elements is supported by substantial evidence. Finally, we will determine whether the order may reasonably be expected to maintain financial integrity, attract necessary capital, and fairly compensate investors for the risks they have assumed, and yet provide appropriate protection to the relevant public interests, both existing and foreseeable. The court's responsibility is not to supplant the Commission's balance of these interests with one more nearly to its liking, but instead to assure itself that the Commission has given reasoned consideration to each of the pertinent factors." Syl. pt. 2, Monongahela Power Co. v. Public Service Comm., 166 W. Va. 423, 276 S.E.2d 179 (1981).

        2. "'A final order of the Public Service Commission, based upon findings not supported by evidence, or based upon a mistake of law, will be reversed and set aside by this Court upon review.' Point 3, Syllabus, Atlantic Greyhound Corporation v. Public Service Commission of West Virginia, 132 W. Va. 650." Syl., United Fuel Gas Co. v. Public Service Commission, 143 W. Va. 33, 99 S.E.2d 1 (1957).

Per Curiam:

        These two cases present appeals from final orders of the Public Service Commission (PSC). In No. 21216, Harris Transfer and Bridgeport Paving and Excavating (Bridgeport Paving) are appellants. In No. 21217, Browning-Ferris Industries of West Virginia (Browning-Ferris) is the appellant. The PSC and Bridgeport Disposal, Inc. are appellees in both cases.

        As noted, the memorandum of law in support of its petition for reconsideration was filed on December 2, 1991. In its March 6, 1992 order, the PSC denied Bridgeport Paving's petition for reconsideration, thus declining to consider the memorandum of law.

        The appellants maintain that because the PSC's order affirming the August 20, 1991 order was not entered until March 6, 1992, the filing of the supporting memorandum on December 2, 1991 did not delay the ultimate decision, and therefore, the PSC should have taken the memorandum into consideration.

        Rule 19.1 of the rules and regulations that govern the organizational operations of the PSC provides, in pertinent part:

            Applications for . . . rehearing or reargument after decision, must be made by petition, duly verified, within ten (10) days after the date of such closing of testimony, final submission or within ten (10) days after the final order was mailed by the Commission to the parties of record, as the case may be. Such petition shall state specifically the grounds relied upon, and shall be filed with the Commission and a copy served by the petitioner upon each adverse party, or his attorney, who appeared at the hearing, or oral argument, if any, or on brief.

(emphasis supplied)See footnote 4

        Accordingly, in light of the clarity of the above-quoted rule, it is evident that the PSC did not commit error in declining to consider the memorandum of law which supported the appellants' petition for reconsideration.

            (b) When a consolidation, merger, purchase, lease, operating contract, or acquisition of control is proposed under this section the carrier, or carriers, or person, seeking authority therefor shall present an application to the commission[.]

            (c) Every consolidation, merger, purchase, lease, operating contract, or acquisition of control, or other transaction referred to in this section made otherwise than as hereinabove provided, shall be void.

(emphasis supplied)

both Marshall Cox, the proprietor of Harris Transfer, and Timothy Callison, the proprietor of Bridgeport Paving, are represented by the same counsel in these proceedings; only Callison entered into a trash collection contract to service Meadowbrook Mall, when the certificate for such authority is possessed by Harris Transfer, see section I.A., supra; only Callison went to the headquarters of Meadowbrook Mall to finalize the contract provisions; only Bridgeport Paving had sufficient equipment to provide trash collection service at Meadowbrook Mall; only employees of Bridgeport Paving delivered trash dumpsters to Meadowbrook Mall; Bridgeport Paving's trucks were seen, as part of a PSC investigation, hauling trash from the Meadowbrook Mall; Callison placed an advertisement in the "yellow pages" of a local telephone directory stating that Bridgeport Paving had authority to haul trash; the PSC's investigator was told by Cox to contact Callison concerning the trash hauling service at Meadowbrook Mall.

        In fact, it was noted by the PSC, in its order, that "[u]pon review of the evidence, it is clear the management and operations of Harris Transfer Company and Bridgeport Paving have become so blurred that the two entities are virtually indistinguishable."

        The appellants Harris Transfer and Bridgeport Paving, while not specifically disputing these factual allegations, contend that their "affiliation" does not constitute an illegal merger because they argue that W. Va. Code, 24A-5-4 [1937] applies only to two regulated carriers. Because Bridgeport Paving is a non-regulated carrier, it is contended by the appellants that this statutory prohibition has no force to this case. We do not agree.

        W. Va. Code, 24A-5-4 [1937] refers to consolidations and mergers between "two or more motor carriers." Nothing in this statutory provision limits its effect to regulated motor carriers.

        Moreover, W. Va. Code, 24A-1-2 [1991] defines "motor carrier." That section provides, in pertinent part: "As used in this chapter: . . . . (7) 'Motor carrier' includes both a common carrier by motor vehicle and a contract carrier by motor vehicle[.]" A "common carrier by motor vehicle" is

        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[.]

W. Va. Code, 24A-1-2 [1991] (emphasis supplied). Again, nothing in this definitional section indicates that only regulated carriers are subject to the provisions of W. Va. Code, 24A-5-4 [1937].

Syl. pt. 2, Monongahela Power Co. v. Public Service Comm., 166 W. Va. 423, 276 S.E.2d 179 (1981).

        In this case, we do not believe that the PSC, with its broad regulatory duties, abused or exceeded its authority.

        With respect to No. 21216, see section III.A.1., supra, it is clear that W. Va. Code, 24A-5-4 [1937] does not distinguish between regulated and non-regulated carriers.

        With respect to No. 21217, see section III.A.2., supra, the lease of "roll-off" trash containers is clearly a "service in connection" with the trash hauling service provided by the certificated carrier. Consequently, such an arrangement would constitute an illegal merger.

        Accordingly, the final order of the Public Service Commission on the issue of merger is affirmed.

        The appellant, Harris Transfer, contends that the issue of dormancy is not a proper issue to be raised in a complaint case, such as this case, but rather, may only be raised when determining "public convenience and necessity" for showing "need" in a new certificate case, or a case where a certificate is sought to be transferred.

        The appellant suggests that under W. Va. Code, 24A-2-5 [1980], which sets forth the requirement for a certificate of convenience and necessity, there is a presumption that overlapping certificate areas fulfill the requirement of public convenience and necessity. See also syl. pt. 4, Stowers & Sons Trucking Co., Inc. v. Public Service Commission, 182 W. Va. 374, 387 S.E.2d 841 (1989). Therefore, the appellant contends that it follows that the issue of dormancy should only be a consideration when examining the level of service for new entrants or when a certificate is to be transferred.

        However, although the appellant may have inferred that dormancy may only be considered in a new or transferred certificate case, neither the legislature nor this Court has ever set forth such a requirement. In fact, if this Court has implied anything with respect to this issue, it has been just the opposite. In Chabut v. Public Service Commission, 179 W. Va. 111, 114, 365 S.E.2d 391, 394 (1987), the Court stated:

        The concept of 'dormancy' relates to the failure of a certificate holder to operate for a period of time under the certificate. This can give rise to several adverse consequences to the certificate holder such as a cancellation of the certificate or, in the event of a transfer, a finding that it is not transferable because of nonuse.

Accordingly, there is nothing erroneous about the PSC ordering that a certificate is dormant in a complaint case.

        As for the facts in this case, that is, whether the evidence supports the PSC's order that the appellant Harris Transfer's certificate was dormant, the record contains ample evidence to support the PSC's order.See footnote 5

        As pointed out by the PSC, Harris Transfer's residential service, although existent, has been limited to only "on call" trash service for just sixteen customers in Clarksburg and Bridgeport, six of whom were provided regular trash service by the City of Clarksburg. Furthermore, between 1988 and 1990, the extent of Harris Transfer's commercial service consisted of trash service to "non-anchor" mall stores at Meadowbrook Mall, and customers at Gabriel Plaza and Hills Plaza. Based upon these facts, the PSC found that "Harris Transfer Company's operations within its area of certificated authority are minimal, irregular, and virtually nonexistent with respect to residential and commercial service, except for substantial commercial service provided to non-anchor Mall stores at Meadowbrook Mall and Gabriel Plaza and Hills Plaza."

        Based upon the above recitation of evidence before the PSC, it is clear that its finding of dormancy is well supported by the record.See footnote 6

        "'A final order of the Public Service Commission, based upon findings not supported by evidence, or based upon a mistake of law, will be reversed and set aside by this Court upon review.' Point 3, Syllabus, Atlantic Greyhound Corporation v. Public Service Commission of West Virginia, 132 W. Va. 650." Syl., United Fuel Gas Co. v. Public Service Commission, 143 W. Va. 33, 99 S.E.2d 1 (1957).

        Accordingly, because the final order of the PSC in this case is supported by the evidence, it is affirmed on the issue of dormancy.

        Thereafter, Bridgeport Paving entered into a contract with Meadowbrook Mall to haul trash, and, as part of that contract, agreed to pay a $1000 per month "service fee."

        Recently, in West Virginia AAA Statewide Assoc. v. Public Service Commission, ___ W. Va. ___, 412 S.E.2d 481 (1991), this Court, under W. Va. Code, 24A-2-4 [1937], invalidated an arrangement whereby an automobile club was given discounts by wrecker services in exchange for referrals. Although the appellants in that case argued that such an arrangement does not constitute a discount or rebate of rates because "certain services were provided in exchange for the reduced rates[,]" ___ W. Va. at ___, 412 S.E.2d at 483, we disagreed, pointing out that "[a]bsent PSC approval of such a rate differential . . . the wrecker operators are required to charge all customers . . . the rates on file with the PSC and to receive payment for services rendered without an intervening discount being applied to the rates charged." ___ W. Va. at ___, 412 S.E.2d at 485 (emphasis in original).

        However, when these cases were initially presented to this Court upon petitions for appeal, we entered an order with respect to the petition filed on behalf of Meadowbrook Mall, specifically, remanding this issue to the PSC "for a hearing and for entry of an appropriate order approving a fee reflecting the petitioner's [Meadowbrook Mall's] actual costs rather than the $1,000.00 flat fee, pursuant to this Court's holding in West Virginia AAA Statewide Association v. Public Service Commission of West Virginia . . . an[d] the agreement by the parties at the hearing on the petition in this matter." (citation omitted)

        Accordingly, this matter has already been disposed of by this Court, and we need not address it herein.

despite the fact that the PSC had not ruled on Bridgeport Paving's motion to do so.