MR. SMITH: Your Honor, my motion is similar to Mr. Potter's, but it goes one step further. As part of my protest, and you can check it, I always end up in all caps and put "NOTICE," and then I ask them or call their attention to 333 and ask for that data.

Not having heard anything from the applicant ‑‑ and I tried to get in touch with them. There was no telephone number or anything at all -- by letter, dated November 23, which I sent a copy to you. I wrote to Mr. -- mistakenly --Sun Ling Conner at the address on the publication in the Bulletin; and as I said, I presume you got a copy of this

THE COURT: I did get a copy.

MR. SMITH: I pointed out again, I'm giving you one more chance but I ended up saying, you are hereby advised that unless I receive the requested data immediately -- underlined ‑‑‑ I intend to move that appropriate sanctions be imposed in accordance with the code. Now, the code so far as that particular part is concerned says that they can't put on any shipper testimony. That's prohibited at that particular hearing, but I join in the motion of Mr. Potter that the application be dismissed. That's part of my motion too.

THE COURT: Are there any other motions'? All right. Very good.

Mr. SMITH. The reason that I say this is I want to be fair to the applicant, but if she is going to be given another opportunity for another hearing, my people have sent me all the way up here --

THE COURT: I recognize, Mr. Smith, that you come all the way from Harrisburg, and you have to go back. That's 250 miles. Mr. Potter has come all the way from Gladstone, New Jersey; and I don't know where Gladstone is, but I estimate it is approximately 55 miles.

MR. OLIN: Approximately 100‑plus miles.

THE CURT: Round trip, 100 plus; and Mr. Boyer he comes from Center Valley, Pennsylvania. Where is that?

MR. BOYER: It is right outside of Allentown, Your Honor.

THE COURT: Allentown is about 5 miles from here; so that is 130 mile. These people were paid to be here, and people have spent money. I will take that into account where I decide what to do.

MR. POTTER: Your, Honor, may I make one more further notation that I forgot to add before; and its just mostly for the record. Certainly, Your Honor doesn't have to be reminded of it because Your Honor was the Presiding Officer at the hearing several years ago of Bachman's Express where a similar situation had happened. An applicant did not notify protestants sufficiently beforehand, and Your Honor imposed sanctions as per Section 333 of the Public Utility Code.

THE COURT: The only sanction I imposed was that I disqualified the witness.

MR. POTTER: That is correct.

THE COURT: Now, Mrs. Conner, we have two motions to dismiss the application on the grounds that you didn't follow the dictates of the statute. The statute is a law enacted by the Legislature called the Public Utility

Code which says that you have the duty to, within a reasonable time of the hearing, make available to all other parties the names of the witnesses which you expect to call and the subject matter of their testimony. If you would like to, I would be glad to show you that section that we are talking about. You can read it now, if you would like to. Do you have any response in your own behalf or in your own defense as to why the motions that were made are not meritorious or why they should be denied?

MRS. CONNER: I am very sorry. I don't know anything about this stuff.

THE COURT: Pardon me.

MRS. CONNER: I don't know anything about this. I am very sorry.

THE COURT: I understand.

MRS. CONNER: I didn't even know that I had to come to hearings.

THE COURT: But you got a letter from Mr. Smith who was kind enough to warn you back in the latter part of November that this might happen. Did you get that letter?

MRS. CONNER: Yes.

THE COURT . So you should have been forewarned that you were going to be in trouble because the law says you have to reveal this information. So you got free advice from Mr. Smith. That is what you got, and you ignored it; and you shouldn't have done that.

You really shouldn't have done that because I know that this case is very important to you. I know that. What you should have done is you should have gotten a lawyer and said, what is this stuff? Tell me what I'm supposed to do. That is what you should have done. If you are going to operate a trucking business, you have to act in a prudent manner.

You have to act in a manner which will safeguard you from loss and safeguard the public from loss. You have to act prudently. You didn't act prudently in this case. You got the protest, and you didn't understand all that gobbledygook. I can understand that; but then you got a letter from Mr. Smith, and he warned you. He is going to make a motion to strike your application or words to that effect if you don't comply.

Right then and there, you should have said, uh‑oh, I got a problem here. I have to go to a lawyer to find out what to do. You didn't do that. I wish you had. Now, it's easy for me to say Mrs. Conner looks like a nice lady, and I went to give her another chance; so I'll just continue the hearing or delay the hearing so she can start over again.

That would be one way for me to go, but as you know, these lawyers have come a long distance, and their clients have paid them to be here. I'm not sure that that would be fair to them. I want to be fair to everybody. I went to be fair to this applicant and to the protestants. On the other hand, Mr. Potter and Mr. Smith, you knew that: the applicant was going to testify. No one had to tell you that.

MR. SMITH: That's all right.

THE COURT: Even though technically she had a duty to tell you that she was going to testify, you could infer that he was going to testify; so I won't dismiss the applications, but I will rule, and I do rule from the Bench, and I will codify it with a written order that no witnesses other then the applicant may appear on behalf of the applicant in this case today.

That means, ma'am, that you are the only witness that can testify because, although you should have even told the protestants that you are going to testify and what you were going to say, I'll forgive you for that. They know or should have known that you were going to testify, but I won't allow you to call anybody else because you didn't tell them about it. Of course, you don't have anybody else here to testify anyway except for the gentleman next to you, your husband. So that is my ruling. Do you understand?

MRS. CONNER: ( Nods head)

THE COURT: Very good.

MR. SMITH: If she testifies, will you be open to a motion to dismiss for lack of prosecution and lack of showing any need today?

THE COURT: I don't know. Maybe she will show need today. I don't know what she is going to say. That remains to be seen, but you can make any motion you want.

MR. SMITH: All right.

THE COURT: We'll go on from here. Mrs. Conner, you have the burden of proof in this case. That means that you have to prove that you are entitled to a certificate of public convenience. You have to prove that you are financially fit and technically fit and that there is a need for your service and what else you have. There is only one way that you can meet your burden of proof. That is by putting on evidence.

Now, I have already ruled that the only evidence you can put on is your own testimony. I don't know that you are going to be able to meet that burden of proof today. I don't know, with your own testimony. It's possible. I can conceive of a possibility that you can do it, but I don't know if you can, quite honestly. Maybe you can --

Now, I'll tell you what I'll do. I'll give you a choice. You may either take the witness chair, and if you do I'll help you as much as I can, although I can't tell you what to testify to and you can tell me why you think you should have it, and we will proceed from there.

Or if you want, I'll dismiss your application without prejudice so as to give you an opportunity to refile. I will do whichever of those things you want me to do. But you know you are dealing with able and experienced lawyers, and you knew that coming in here. If you would want me to, if you think it would be in your best interests, I will be glad to dismiss your application.

I won't be glad to do it, but I will dismiss your application without prejudice so you can file again. If I dismiss your application with prejudice because you haven't presented the proper evidence, then you won't be able to refile for at least six months. That's my understanding.

If you want, we can proceed today. Who knows; maybe you could prove those things which are necessary. Which of those things would you like to do? Why don't you take a few moments and discuss it.

(At this lime there was a short discussion off the record.)

THE COURT: All right. Ma'am, have you decided? Do you want to go forward today and testify?

MRS. CONNER: Yes.

THE COURT: You do want to go forward?

MRS. CONNER: Yes.

THE COURT: Then, this is what I will do. I will ask you in a moment to come forward. Then I will administer a witness' oath to you and then you will tell me why you think you are entitled to this certificate of public convenience so as to enable you to perform the transportation services that you seek. Before we do that, do you have any questions, Mrs. Conner?

MRS. CONNER: No.

THE COURT: Please come forward and remain standing for a moment.

SUN LING CONNER

WAS CALLED, AND HAVING BEEN DULY SWORN, WAS

EXAMINED AND TESTIFIED AS FOLLOWS.

THE COURT: Please be seated, Mrs. Conner. Relax and get comfortable. If you have any questions, you may ask me. If it is a question, I will answer it.

MR. SMITH: Would you please advise her that she has to talk and not just shake her head.

THE COURT: We are all used to nodding our head up and down and sideways in response to a question, but now we have a court reporter. This gentleman here, he takes down everything. He can't record a nod of a head. You have to say yes or no or whatever the appropriate answer is. All right?

THE WITNESS: Yes.

EXAMINATION

BY THE COURT

Q. All right, ma'am. Tell me what is on your mind.

A. Right now, we have a lease.

Q. Talk more slowly and a little louder.

MR. SMITH. Louder. I can't hear her.

BY THE COURT:

Q. Don't be nervous. Pretend you are talking to someone a half a block away.

A. Right now, we have a lease with the Hubbell Company.

Q. A lease with the Hubbell Company?

A. After -- they take 33 percent off and road tax.

0. Road tax. They take 33 percent off and road tax.

A. And fuel and drivers. We don't make anything. So right now, we can drive for Bonner Industries.

0. You can drive for whom?

A. Drive for Bonner Industries.

THE COURT: Would you help me, sir. What is she saying?

MR. CONNER: Bonner Industries.

BY THE COURT:

Q. You can drive for Bonner Industries?

A. Yes, but we need a PUC number.

Q. You need a PUC number. Why do you think you can drive for Bonner, Industries? Has someone given you a permit to do so? You mean Bonner Industries wants you to drive for them.

A. Yes.

Q. That's what you mean. They want you to perform transportation services.

MR. SMITH: How do you spell that?

THE WITNESS: B-o-n --

MR .SMITH: From where?

THE WITNESS: From Kingston.

BY THE COURT:

Q. Kingston, Pennsylvania?

A . ( Nods head)

Q. What does Bonner Industries do for a living? What do they do?

A. Steel.

Q. They produce steel?

A. (Nods head.)

Q. What else do you want to tell me?

A. I guess that's about it right now. We are just starting out, and we cannot afford lawyers.

Q. I know you are starting out. I understand that. I know what it is like to start out and not be able to afford a lawyer, but if you were granted a certificate, you would have to spend money. You would have to spend money to keep your vehicles maintained properly. You would have to spend money to train your drivers. It's necessary to spend money.

I know you are starting out and can't afford a lawyer, but I will be honest with you. You can't afford not to have lawyer because it will be difficult for you to meet your burden of proof I can't tell you what subject matters are necessary. I can only tell you that in my opinion you haven't covered them. You haven't proven the things that you should prove. I can tell you that now. It would be unfair for me -- if I would be acting as your lawyer -- if I told you

the things that you have to prove in order to get a certificate. I can't do that.

The only thing I can tell you is that if that is all you are going to tell me, I don't think you will have met the burden.

If you still want to have this case withdrawn without prejudice, I will let you do so because you haven't proven the things that you have to prove to bet a certificate. I'm telling you that now.

THE COURT: Do you want to discuss this again with your wife, Mr. Conner? I'm telling you now that she hasn't proven what she has to prove.

MR. CONNER: Yes.

THE COURT: We will go off the record.

(At this time there was a short discussion held off the record.)

THE COURT: Back on the record. I asked you on the record earlier if you

wanted this case dismissed without prejudice so as to enable you to refile right away. Is that what you want to do?

MRS. CONNER: Yes.

THE COURT: Do you want to withdraw the application, or do you want me

to dismiss it without prejudice. Either way you could came back right away. Which of those things do you want. to do?

MR. CONNER: Dismiss it.

MRS. CONNER: Dismiss it.

THE COURT: Without prejudice. Are there any objections to this?

MR. SMITH: I prefer that the application be dismissed for lack of proof of need.

MR. POTTER: I would join in that, Your Honor. I feel that the

application should be dismissed for failure to comply with applicant's burden of fitness and need. Your Honor advised the applicant in plain English as to the need and the choice available. The applicant decided to go on with the one witness.

THE COURT: She can withdraw the application. I can't stop her, and neither can you.

MR. POTTER: That is correct, Your Honor.

THE COURT: Maybe she will withdraw the application. Do you withdraw

this application? Do you withdraw the application?

MRS. CONNER: Yes.

THE COURT: The application having been withdrawn, we have no further

business to transact at this time.

MR. POTTER: Thank you, Your Honor.

MR. BOYER: Thank you, Your Honor.

THE COURT: Thank you.

(At this time the proceedings in the above‑captioned matter was concluded.)

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