Allen v. Public Utilities Commission

Moyer, C.J. Appellants argue that by summarily dismissing their protests, the commission failed to take into consideration certain requirements of R.C. 4921.10 and, by implication, R.C. 4903.09. We disagree and affirm the order of the commission. R.C. 4921.10 provides in part: “Before granting any certificate the commission shall take into consideration other existing transportation facilities in the territory for which a certificate is sought. If it appears from the evidence that the service furnished by existing transportation facilities is reasonably adequate, the commission shall not grant such certificate.” The commission emphasizes that the Continental case was considered three months prior to the filing of Sandridge’s application and that it may take administrative notice of the Continental record. The central issue is whether it is reasonable and lawful for the commission to base its order herein on evidence of record obtained in the Continental proceeding. Disposition of this question turns largely on the propriety of taking administrative notice of the earlier record and the sufficiency of the Continental order. This court has previously recognized neither an absolute right to nor prohibition against the commission’s authority to take administrative notice. Each case has been resolved based on the particular facts presented. In Forest Hills Utility Co. v. Pub. Util. Comm. (1974), 39 Ohio St. 2d 1, 68 O.O. 2d 1, 313 N.E. 2d 801, we held that it was error for the commission to take administrative notice of an analysis not available at the time of hearing which the appellant had no opportunity to examine. We concluded that evidence must be introduced at a hearing or otherwise brought to the knowledge of the interested parties prior to decision, with an opportunity to explain and rebut. Id. at 3, 68 O.O. 2d at 2, 313 N.E. 2d at 802. But in Schuster v. Pub. Util. Comm. (1942), 139 Ohio St. 458, 22 O.O. 507, 40 N.E. 2d 930, we affirmed an order in which the commission stated that it would have been derelict in its duty to the public not to have taken judicial notice of its own records, and in J.V. McNicholas Transfer Co. v. Pub. Util. Comm. (1975), 44 Ohio St. 2d 23, 73 O.O. 2d 118, 336 N.E. 2d 429, we held that administrative notice of a zone enlargement petition proceeding was reasonable. In Canton v. Pub. Util. Comm. (1980), 63 Ohio St. 2d 76, 17 O.O. 3d 46, 407 N.E. 2d 9, we held that the commission’s reference to a prior commission case was not improper, and in County Commrs. Assn. v. Pub. Util. Comm. (1980), 63 Ohio St. 2d 243, [186] 17 O.O. 3d 150, 407 N.E. 2d 534, we concluded that it was not a denial of due process of law for the commission to take administrative notice of an investigative case in the appellants’ complaint case. More recently, in Cincinnati Bell Tel. Co. v. Pub. Util. Comm. (1984), 12 Ohio St. 3d 280, 12 OBR 356, 466 N.E. 2d 848, appeal dismissed (1986), 476 U.S. 1166, we declined to reverse an order of the commission where no prejudice was shown to result from taking administrative notice of a fact without providing the utility an opportunity to present evidence regarding this additional information. For purposes of our review, the factors we deem significant include whether the complaining party had prior knowledge of, and had an adequate opportunity to explain and rebut, the facts administratively noticed. Moreover, prejudice must be shown before we will reverse an order of the commission. Here, we find nothing improper in the commission’s taking administrative notice of the Continental record. Appellants were parties to the Continental proceeding and, as such, arguably had knowledge of, and an adequate opportunity to explain and rebut, the evidence. Further, they were on notice, following Continental, that additional opportunities to challenge the earlier findings could be lost. The commission had cautioned J&M not to expect to use the authority granted in Continental to protest other carriers’ attempts to obtain identical authority. Clearly, it was incumbent on the appellants, if they had any concerns regarding the Continental record or order, to have raised these matters through an application for a rehearing of the earlier order. J&M essentially maintains that it was unnecessary to apply for a rehearing of the Continental order, or that it is otherwise unlawful to rely on this decision, because the findings on which the commission based dismissal of its protests were not, in its opinion, true findings. For example, J&M characterizes as suggestive the commission’s admonition against using the Continental authority to protest others’ requesting similar authority. We find this language to be clear. By protesting the granting of a certificate in this case, appellants engaged in the exact conduct the Continental order warned against. Appellants also argue that the language quoted at the outset of the decision is merely obiter dictum that appears only in the discussion portion of the order. R.C. 4903.09 provides: “In all contested cases heard by the public utilities commission, a complete record of all of the proceedings shall be made, including a transcript of all testimony and of all exhibits, and the commission shall file, with the records of such cases, findings of fact and written opinions setting forth the reasons prompting the decisions arrived at, based upon said findings of fact.” In MCI Telecommunications Corp. v. Pub. Util. Comm. (1987), 32 Ohio St. 3d 306, 311-312, 513 N.E. 2d 337, 343, we recently addressed an argument similar to the one asserted by J&M. We recognized that “[t]aken literally, R.C. 4903.09 requires PUCO orders to contain specific findings of fact and conclusions of law” and that orders which merely make summary rulings and conclusions without developing the supporting rationale or record are subject to reversal. However, in MCI we also recognized that where there was enough evidence and discussion in an order to [187] enable the commission’s reasoning to be readily discerned, this court has found substantial compliance with R.C. 4903.09, and held that the lack of specific findings may be simply a technical defect which would not result in the invalidation of the order. Consumers’ Counsel v. Pub. Util. Comm. (1979), 58 Ohio St. 2d 108, 12 O.O. 3d 115, 388 N.E. 2d 1370; Braddock Motor Freight, Inc. v. Pub. Util. Comm. (1963), 174 Ohio St. 203, 22 O.O. 2d 173, 188 N.E. 2d 162. After analyzing more recent decisions in MCI, we concluded that to meet the requirements of R.C. 4903.09, the commission’s order must show, in sufficient detail, the facts in the record on which the order is based and the reasoning followed by the commission in reaching its conclusion. Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1984), 12 Ohio St. 3d 320, 322, 12 OBR 390, 392, 466 N.E. 2d 917, 920; Cleveland Elec. Illum. Co. v. Pub. Util Comm. (1983), 4 Ohio St. 3d 107, 4 OBR 355, 447 N.E. 2d 746; Harold D. Miller, Inc. v. Pub. Util Comm. (1982), 1 Ohio St. 3d 162, 1 OBR 194, 438 N.E. 2d 448. The procedural entry herein and the Continental order meet this test. They show, in detail, the facts in the record and the reasoning followed. Therefore, we hold that the commission’s entry and the Continental order satisfy the requirements of R.C. 4903.09 for a reasoned decision based on a factual record. We do not share the appellants’ concerns that to uphold the dismissal entry is tantamount to encouraging the commission to skirt its statutory duties and to “* * * effectively destroy the concept of economic regulation of motor carriers in Ohio intrastate commerce.” Our holding today recognizes only that it is appropriate to rely on the Continental decision for purposes of the proceeding below. Sandridge’s application was filed just three months after the Continental decision was issued. One of the key findings from Continental — that “there currently exists within the state of Ohio an ongoing, special, state-wide need for transportation service in vehicles equipped with mechanical refrigeration [emphasis added]” — is, by its own terms, short-lived. The requirements known at the time of Continental and the order herein obviously could change. With this potential for change, renewed consideration will almost certainly need to be given to “other existing transportation facilities in the territory for which a certificate is sought” if the provisions of R.C. 4921.10 are to be satisfied in the future. We find the remainder of appellants’ arguments, in particular those regarding the commission’s reliance on the “law of estoppel” and the failure to include “conditions” on the face of the Continental certificates of authority, unnecessary to address. Even if it is assumed that the commission erred in either respect, we can find no evidence of prejudice. Absent a showing of prejudice, this court will not reverse an order of the commission. Cincinnati Bell, supra, at 285,12 OBR at 360, 466 N.E. 2d at 853. Whether the applicant herein possesses sufficient equipment, experience, ability, financial stability and knowledge of the rules and regulations governing motor carrier operations and is a proper party to whom authority may be granted, is not an issue presently before us. Nor have we been called upon to determine whether the appellants have the right to intervene to present their views on this, the “fitness” aspect of Sandridge’s certification proceeding. We would [188] observe, however, that Ohio Adm. Code 4901-5-02(C) does imply that the commission will entertain petitions to intervene based on reasons other than conflicting authority. Accordingly, we hold that the commission did not act unreasonably or unlawfully in dismissing the protesting carriers, and we affirm the order of the commission. Order affirmed. Sweeney, Holmes and Douglas, JJ., concur. Locher, Wright and H. Brown, JJ., dissent.