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In re Application of Wilner''s Livery Service Inc.

Decided: April 26, 1978.

IN RE APPLICATION OF WILNER'S LIVERY SERVICE, INC.


On appeal from New Jersey Board of Public Utilities.

Allcorn, Morgan and Horn.

Per Curiam

[159 NJSuper Page 227] Appellant Wilner's Livery Service, Inc. (Wilner) appeals a decision of the Board of Public Utilities

(Board) holding that "The services rendered by Wilner * * * constitutes [ sic ] charter services within the purview of N.J.S.A. 48:4-1 and therefore places [ sic ] Wilner's business activities within the jurisdiction of the Board," and an order directing it to apply to said Board for a Certificate of Public Convenience and Necessity (Certificate) within a stated time, or be subject to penalty for failing to do so.

The prelude to this appeal commenced in 1976, when the Board sent letters to Wilner and other operators of limousine services similar to those furnished by Wilner and known to be operating without certificates, instructing them to apply for same. In response, on January 17, 1977 Wilner filed a petition with the Board demanding judgment that it was not subject to the Board's jurisdiction. On April 25, 1977 and on May 26, 1977 the board examiner conducted a public hearing at which Wilner was represented. At the conclusion of the hearing the parties waived preparation of the hearing examiner's report and recommendation, and consented to the certification of the record directly to the Board for final action.

On September 16, 1977 the Board held that it had jurisdiction over Wilner and ordered Wilner to file a petition for certification within 15 days. On October 3, 1977 Wilner filed the instant appeal. On October 31, 1977 on Wilner's application, we granted a stay of the Board's order pending appeal.

Wilner contends that the Board erred in holding that its limousine operations, described hereinafter in the factual determinations of the Board, were regulated by it pursuant to the statutory provision dealing with autobuses, N.J.S.A. 48:4-1 et seq. It asserts that its limousine operations fall under the statutory provisions pertaining to autocabs, N.J.S.A. 48:16-13 et seq. , which reads as follows:

"Autocab" means and includes any automobile or motor car engaged in the business of carrying passengers for hire which is held out, announced or advertised to operate or run or which is operated or run over any of the streets or public highways of this state, and

which is hired by charter or for a particular contract, or by the day or hour or other fixed period , or to transport passenger to a specified place or places, or which charges a fare or price agreed upon in advance between the operator and the passenger. Nothing in this article contained shall be construed to include taxicabs, hotel busses or busses employed solely in transporting school children or teachers or autobusses which are subject to the jurisdiction of the board of public utility commissioners , or interstate autobusses required by federal or state law or rules of the board of public utility commissioners to carry insurance against loss from liability imposed by law on account of bodily injury or death. [Emphasis supplied]

The above-quoted section is a part of chapter 16 of N.J.S.A. Title 48, which covers taxicabs (N.J.S.A. 48:16-1 to 12), autocabs (N.J.S.A. 48:16-13 to 22) and jitneys (N.J.S.A. 48:16-23 to 28), each of which type of business is respectively defined within the sections pertaining to it. The factual determinations to the extent made by the Board, as follows, were not disputed by Wilner:

For historical purposes it should be noted that prior to the public hearings, the Bureau of Rail and Motor Carriers (Bureau) requested Wilner to comply with N.J.S.A. 40:4-3 by filing a petition for the issuance of a Certificate of Public Convenience and Necessity in accordance with N.J.A.C. 14:1-5.1 et seq. Wilner took the position that it is not operating a business in the State of New Jersey as defined by N.J.S.A. 48:4-1 et seq., and therefore is not subject to the Board's jurisdiction. Wilner refused to comply with the Bureau's request.

The testimony of David Wilner, president and chief executive operating officer of petitioner, shows that Wilner is not certified by the Board, but does provide the public a business commonly referred to as a limousine or livery service. More particularly, the service offered and provided, is the furnishing of limousines with a chauffer [ sic ] to transport passengers to a given point, either for private livery service or to attend weddings, on a state-wide basis. In addition thereto, ...


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