Mercury Motor Express, Inc. v. United States

• Decision Date: 15 May 1972
• Docket Number: No. 71-329-Civ. T.,71-329-Civ. T.
• Citation: 343 F. Supp. 516
• Parties: MERCURY MOTOR EXPRESS, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.
• Court: U.S. District Court — Middle District of Florida

343 F. Supp. 516

MERCURY MOTOR EXPRESS, INC., Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants.

No. 71-329-Civ. T.

United States District Court, M. D. Florida, Tampa Division.

May 15, 1972.

Gregory A. Presnell, of Akerman, Senterfitt, Eidson & Wharton, Orlando, Fla., for plaintiff.

Raymond M. Zimmet, Interstate Commerce Commission, Washington, D. C., John L. Briggs, U. S. Atty., Jacksonville, Fla., for defendants.

John M. Musselman, Rhoades, Sinon & Reader, Harrisburg, Pa. (Attorney for Intervenor, P. L. Lawton, Inc.).

Before RONEY, Circuit Judge, KRENTZMAN and HODGES, District Judges.

OPINION AND JUDGMENT

HODGES, District Judge.

The plaintiff (Mercury Motor) seeks reversal of certain orders entered by the Interstate Commerce Commission in its Docket No. MC-128762 (Sub. No. 2).¹ The Commission rejected Mercury's petition to re-open that proceeding and modify an earlier order granting certain authority to the intervenor, P. L. Lawton, Inc., as a contract motor carrier. We reverse and remand for a hearing and further consideration by the I.C.C.

Mercury Motor is a common carrier authorized by the Commission to transport general commodities by truck between points in various states including Pennsylvania and Florida. One of its customers in prior years has been the Wise Potato Chip Company which maintains a manufacturing or processing facility in Berwick, Pennsylvania, and another similar plant on the outskirts of St. Augustine, Florida. As a common carrier, Mercury has regularly transported foodstuffs and other materials for Wise between these two locations.

On June 21, 1967, P. L. Lawton, Inc., of Berwick, Pennsylvania, filed an application with the I.C.C. seeking a permit to operate as a contract motor carrier between Berwick and various other locations including all points in Florida. The application was supported by Wise Potato Chip Company, and the requested certificate would have permitted Lawton to transport shipments for Wise that had previously been conveyed, at least in part, by Mercury. In accordance with I.C.C. procedures, therefore, Mercury protested the Lawton application.²

A hearing was held before an I.C.C. Examiner on October 9, 1967. The following colloquy occurred immediately after the hearing had been opened:

"Exam. Nicholson: Any other appearances?

There being no response, if you are ready, Mr. Musselman, you may proceed, sir.

Mr. Musselman Counsel for Lawton: If the Examiner please at this time I offer the following limited amendment of the application so that the application would read: `Authority sought to engage in operation, in interstate or foreign commerce' . . .

Exam. Nicholson: Does everyone have a copy of that:

Mr. Musselman: Yes.

Exam. Nicholson: Do Protestants have a copy of the proposed amendment? I don't think then it is necessary to read it.

Mr. Musselman: All right, sir.

The intention of the amendment is to make certain limitation in the authority sought: First, to except St. Augustine from the State of Florida; to limit the foodstuff ingredients to those except in bulk; and rejected prepared foodstuffs, not frozen and not in bulk, from the above destinations to Berwick, in the same manner as the outgoing prepared foodstuffs are limited to not frozen and not in bulk. (Emphasis supplied)

Those are the intentions of the amendment.

Exam. Nicholson: I think probably it might be well if we just take that amendment as an exhibit.

Mr. Musselman: All right, sir."

* * * * * *

"Exam. Nicholson: Any objection to the amendment?

Mr. Stroud Counsel for Mercury Motor: No, sir.

Mr. Davis: None.

Exam. Nicholson: There being no objection, the amendment appears to be restrictive in nature, it is allowed.

Mr. Stroud: Mr. Examiner, since the amendment has been made and has been allowed by the Examiner, Mercury Motor Express, Inc. would like to withdraw its protest to the instant application and would like to remain a party of record to receive copies of any orders, and would like to be physically excused from the hearing room, sir.

Exam. Nicholson: All right, sir. The record will so show. You are excused, Mr. Stroud.

Mr. Stroud: Thank you very much, sir."

Thus, the permit ultimately issued to Lawton by the I.C.C. specifically excluded the right to serve St. Augustine, Florida; and during 1968, 1969 and the early part of 1970, Mercury apparently continued as usual to handle Wise's shipments from Berwick to the Florida location. However, in late September, 1970, Mercury discovered that Lawton had begun transporting this traffic. Upon investigation, Mercury learned that the Wise facility in Florida was actually located just outside the city limits of St. Augustine in St. Johns County. As a result, the Lawton certificate did not in fact exclude the right to serve that location.³

Mercury thereupon petitioned the I.C. C. to re-open the record and modify Lawton's permit to exclude its right to serve the Wise facility in Florida. The Commission denied the petition on January 29, 1971, without a hearing, and we are called upon to review that decision.

During the original I.C.C. hearing on Lawton's application, one of the principal witnesses was the Traffic Manager of Wise Potato Chip Co. His prepared statement was offered in support of the Lawton application, and in such statement he described the location of his company's facilities as follows:

"The main plant of Wise Potato Chip Co. is located upon approximately 18 acres at Berwick, Pennsylvania, with offices at 228 Rasely Street, Berwick. An additional production plant is located at St. Augustine, Florida . . ." (Emphasis supplied).

Mercury contends that it understood the Wise plant to be located at St. Augustine as represented by the shipper; that it relied upon such representation and withdrew its protest (as encouraged by the Commission rules, 49 C.F.R. § 1100.247(d) (5)) only when the Lawton application was amended to exclude St. Augustine; and that if in fact the Lawton certificate includes the right to serve the Wise facility in Florida, then the same was issued by the Commission through inadvertence and mistake since the record before it was not susceptible of any construction other than an intent by the parties as well as the Hearing Examiner to exclude that plant.

In its order denying Mercury's petition to re-open the record, the Commission recited four grounds as justification for its refusal: (a) that Lawton's permit is clear and unambiguous on its face; (b) that Mercury withdrew from the original proceeding thereby waiving any right to complain; (c) that the original record does...