Koppers Company v. United States, Civ. No. 12974.

CourtU.S. District Court — Eastern District of Pennsylvania
Writing for the CourtSTALEY, Circuit , and GOURLEY and WILLSON
Citation132 F. Supp. 159
PartiesKOPPERS COMPANY, Inc., Plaintiff, v. UNITED STATES of America, Defendant, and The Interstate Commerce Commission et al., Intervening Defendants.
Decision Date07 June 1955
Docket NumberCiv. No. 12974.

132 F. Supp. 159

KOPPERS COMPANY, Inc., Plaintiff,
v.
UNITED STATES of America, Defendant,
and
The Interstate Commerce Commission et al., Intervening Defendants.

Civ. No. 12974.

United States District Court W. D. Pennsylvania.

June 7, 1955.


Moorhead & Knox, Pittsburgh, Pa., for National Water Carriers Ass'n, intervenors.

John M. Crimmins, John B. Keeler, Richard E. Spatz, Pittsburgh, Pa., for Koppers Co., Inc.

John W. McIlvaine, U. S. Atty., Pittsburgh, Pa., Herbert Brownell, Atty. Gen., John Wigger, Sp. Asst. to the Atty. Gen., for the United States.

Elder Marshal, John J. Heard, of Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for Chesapeake & O. Ry. Co., Virginian Ry. Co. and Norfolk & Western Ry. Co.

Edward K. Reidy, Gen. Counsel, Isaac K. Hay, Asst. Gen. Counsel, Washington, D. C., for Interstate Commerce Commission.

Raymond Goehring, Pittsburgh, Pa., Leonard S. Leaman, Frank J. Clark, New York City, for James McWilliams Blue Line, Inc., intervenor.

Harold R. Schmidt, of Rose, Rose & Houston, Pittsburgh, Pa., for Property Owners' Committee.

Before STALEY, Circuit Judge, and GOURLEY and WILLSON, District Judges.

GOURLEY, Chief Judge.

This is a suit to enjoin, set aside and annul an order entered by the Interstate Commerce Commission on October 4, 1954, 28 U.S.C. §§ 1331, 1336, 2284, 2321-2325.

132 F. Supp. 160

It came on to be heard before a specially constituted statutory court pursuant to the provisions of Title 28 U.S.C. §§ 2284 and 2321-2325.

In addition to the United States as statutory defendant, the Interstate Commerce Commission and certain common carriers have intervened as defendants.

The answers of the Interstate Commerce Commission, The Chesapeake and Ohio Railway, The Virginian Railway Company and The Norfolk and Western Railway Company all plead a "First Defense," asserting in substance plaintiff's failure to state a claim upon which relief can be granted.1

The complaint in this case followed the denial by the Commission of plaintiff's petition for reconsideration of its order of April 11, 1952. The first defense was lodged, which defense, if sufficient, will dispose of the proceeding and eliminate the necessity of considering the arguments upon the merits. If the defense is insufficient, it should be stricken to leave the way clear for a determination of the plaintiff's claim upon the merits.

The following is the chronology of events:

On January 16, 1951, the Class I common carrier railroads petitioned the Interstate Commerce Commission for approval of a general increase in freight rates. The petition was docketed Ex Parte No. 175, Increased Freight Rates, 1951, and resulted, inter alia, in an order entered on April 11, 1952, permitting rate rail increases as to coal with a limitation maximum of 40¢ per net ton; provided, however, that the increased rail freight rates on coal from the Southern Mines to Hampton Roads could be no higher than 20¢ per net ton when the coal was destined for subsequent movement by water in coastwise service to New England ports. The effect of said permissive order was to bestow upon receivers of coal located at New England ports a 20¢ lower rail rate for the transportation of coal from the mines to Hampton Roads ports than competing receivers located at less distant ports, including New York, New Jersey, and Philadelphia. On May 8, 1952, the plaintiff, which operates its coke plant at Seaboard, New Jersey, filed a petition for intervention in Ex Parte No. 175, and for reconsideration and modification of the April 11, 1952, order.

On May 28, 1952, Consolidated Edison Company of New York, Inc., filed with the Commission a complaint against the Virginian Railway Company and The Chesapeake and Ohio Railway Company, which was assigned Docket No. 31045, it being claimed the permissive coal rate increases were unfair and discriminatory. The Koppers Company did not intervene or become a party to the proceeding

132 F. Supp. 161
on the complaint in Docket No. 31045, Consolidated Edison Company of New York, Inc. v. The Virginian Railway Company, et al

Plaintiff's petitions for reconsideration and intervention were related only to Ex Parte No. 175, Increased Freight Rates, 1951, and participated as an intervenor restricted to the ex parte proceeding alone.2

On May 12, 1953, plaintiff filed a complaint before the Interstate Commerce Commission against the southern railroads, which proceeding has been assigned docket No. 31264, seeking to have the rates involved in the instant action declared invalid and also seeking reparations for the alleged illegal charges by The Chesapeake and Ohio Railway Company and others for coal shipped from the southern mines to Hampton Roads for movement by water in coastwise service to plaintiff's Seaboard plant. Said complaint is presently pending before the Commission.

Plaintiff's suit before this court seeks to have the court direct the Commission to grant the relief sought in plaintiff's petition for reconsideration initially filed before the Commission, which is to require the southern carriers to maintain the same rate on transportation of coal from the southern mines to Hampton Roads ports for subsequent transshipment by water, whether the ultimate destination is the plaintiff's plant at Seaboard, New Jersey, or its competitors located at New England ports.

It is contended that the Commission's report and order "Ex parte No. 175, Increased Freight Rates, 1951" resulting from the findings...

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17 practice notes
  • 45 191 Aberdeen and Rockfish Railroad Company v. Students Challenging Regulatory Agency Procedures United States v. Students Challenging Regulatory Agency Procedures 8212 1966, 73 8212 1971, Nos. 73
    • United States
    • United States Supreme Court
    • June 24, 1975
    ...District Court decisions; see, e.g., Algoma Coal & Coke Co. v. United States, 11 F.Supp. 487 (ED Va.1935); Koppers Co. v. United States, 132 F.Supp. 159 (WD Pa.1955); Florida Citrus Comm'n v. United States, 144 F.Supp. 517 (ND Fla.1956), aff'd per curiam, 352 U.S. 1021, 77 S.Ct. 589, 1 L.Ed......
  • Students Chal. Reg. Agcy. Pro.(SCRAP) v. United States, Civ. A. No. 971-72.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 19, 1974
    ...(1973). 14 See, e. g., Algoma Coal & Coke Co. v. United States, E.D.Va., 11 F.Supp. 487 (1935); Koppers Co. v. United States, W. D.Pa., 132 F.Supp. 159 (1955); Atlantic City Electric Co. v. United States, S.D.N.Y., 306 F.Supp. 338 (1969), and Alabama Power Co. v. United States, D.D.C., 316 ......
  • Oklahoma Corporation Commission v. United States, No. 73-C-163.
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • December 20, 1974
    ...proceedings for individual relief and for reparations pursuant to 49 U.S. C.A. §§ 13(1), 15(1) and 16(1).6 Koppers Co. v. United States, 132 F.Supp. 159, 163 (W.D.Pa.); National Small Shipment Traffic Conference, Inc. v. United States, supra, 321 F.Supp. at 506; Atlantic City Electric Co. v......
  • North Carolina Natural Gas Corp. v. United States, Civ. A. No. 2360.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • November 27, 1961
    ...remedies under the Interstate Commerce Commission Act, where rates are challenged, in Koppers Co. v. United States, W.D. Pa., 132 F.Supp. 159, p. 163 (Staley, C. J., and Gourley & Willson, D. J.), the court "If the increased rates as applied to the plaintiff's particular situation can be sh......
  • Request a trial to view additional results
17 cases
  • 45 191 Aberdeen and Rockfish Railroad Company v. Students Challenging Regulatory Agency Procedures United States v. Students Challenging Regulatory Agency Procedures 8212 1966, 73 8212 1971, Nos. 73
    • United States
    • United States Supreme Court
    • June 24, 1975
    ...District Court decisions; see, e.g., Algoma Coal & Coke Co. v. United States, 11 F.Supp. 487 (ED Va.1935); Koppers Co. v. United States, 132 F.Supp. 159 (WD Pa.1955); Florida Citrus Comm'n v. United States, 144 F.Supp. 517 (ND Fla.1956), aff'd per curiam, 352 U.S. 1021, 77 S.Ct. 589, 1 L.Ed......
  • Students Chal. Reg. Agcy. Pro.(SCRAP) v. United States, Civ. A. No. 971-72.
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 19, 1974
    ...(1973). 14 See, e. g., Algoma Coal & Coke Co. v. United States, E.D.Va., 11 F.Supp. 487 (1935); Koppers Co. v. United States, W. D.Pa., 132 F.Supp. 159 (1955); Atlantic City Electric Co. v. United States, S.D.N.Y., 306 F.Supp. 338 (1969), and Alabama Power Co. v. United States, D.D.C., 316 ......
  • Oklahoma Corporation Commission v. United States, No. 73-C-163.
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • December 20, 1974
    ...proceedings for individual relief and for reparations pursuant to 49 U.S. C.A. §§ 13(1), 15(1) and 16(1).6 Koppers Co. v. United States, 132 F.Supp. 159, 163 (W.D.Pa.); National Small Shipment Traffic Conference, Inc. v. United States, supra, 321 F.Supp. at 506; Atlantic City Electric Co. v......
  • North Carolina Natural Gas Corp. v. United States, Civ. A. No. 2360.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • November 27, 1961
    ...remedies under the Interstate Commerce Commission Act, where rates are challenged, in Koppers Co. v. United States, W.D. Pa., 132 F.Supp. 159, p. 163 (Staley, C. J., and Gourley & Willson, D. J.), the court "If the increased rates as applied to the plaintiff's particular situation can be sh......
  • Request a trial to view additional results

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