Transport of New Jersey v. Greyhound Lines, Inc., Civ. A. No. 78-2178.

• Decision Date: 11 January 1979
• Docket Number: Civ. A. No. 78-2178.
• Parties: TRANSPORT OF NEW JERSEY, Plaintiff, v. GREYHOUND LINES, INC., Defendant.
• Court: U.S. District Court — District of Columbia

463 F. Supp. 1117

TRANSPORT OF NEW JERSEY, Plaintiff, v. GREYHOUND LINES, INC., Defendant.

Civ. A. No. 78-2178.

United States District Court, District of Columbia.

January 11, 1979.

John R. Sims, Jr., Washington, D. C., for Transport of New Jersey.

L. C. Major, Jr., Alexandria, Va., for Greyhound Lines.

MEMORANDUM OPINION

BARRINGTON D. PARKER, District Judge.

This proceeding arises under the Interstate Commerce Act (Act), 49 U.S.C. § 301 et seq. Plaintiff Transport of New Jersey seeks an injunction restraining Greyhound Lines from offering specified bus transportation between the Philadelphia, Pennsylvania area and Atlantic City, New Jersey. The service was inaugurated by Greyhound on November 15, 1978. Transport alleges that Greyhound lacks the appropriate certificate of public convenience and necessity required by § 306(a) and its conduct is thus a "clear and patent violation" of the Act. This Court's jurisdiction is conferred under the provisions of § 322(b)(2).¹ Prior to instituting this proceeding, plaintiff filed a formal complaint against Greyhound with the Interstate Commerce Commission (Commission).² That complaint has not been acted on by the agency and an initial ruling is not expected within the next six months. However, in response to the Court's request the Commission filed an amicus memorandum in this case on December 7, 1978.

The plaintiff sought and was denied a temporary restraining order on November 17, 1978. It appearing that there were no material facts in dispute, the Court determined, with the parties' concurrence, that cross motions for summary judgment were appropriate. Such motions were filed and a hearing was held on December 8, 1978. After consideration of the legal memoranda and argument of counsel, and the Commission's amicus memorandum, the Court concludes that Transport of New Jersey is entitled to summary judgment and injunctive relief as a matter of law.

The material undisputed facts follow. Transport holds proper authority from the Commission to perform regular scheduled motor common carrier transportation of passengers between Philadelphia, Pennsylvania and Atlantic City, New Jersey. Service has been provided for more than 25 years and Transport now operates non-stop express buses in 23 daily regularly scheduled round trips from 4 locations in and around Philadelphia to Atlantic City. A round trip ticket costs $7.25.

Greyhound has a certificate of public convenience and necessity to transport passengers and their baggage over irregular routes, "in special operations, in round trip sightseeing or pleasure tours," between various points, and insofar as relevant here, including certain counties in the state of Pennsylvania and Atlantic City, New Jersey. On November 15, 1978, Greyhound began regularly scheduled, round trip twice daily transportation of passengers from 13 fixed locations in and around Philadelphia to the Resorts International Hotel Casino (Casino) in Atlantic City.³ The defendant operates this service over three separate routes for a total of at least 6 buses a day Monday through Friday. Each trip includes a stay in Atlantic City from six to eight hours. Although advance seat reservations are available, the general public is not restricted and anyone may board a bus at any one of the 13 pick-up points on a first-come, first-serve basis. There is no group membership or affiliation requirement of any kind. The cost of the round trip ticket is $12.

At the Casino, Greyhound passengers are provided various amenities including immediate access to facilities, a meal or an evening theater performance if available, a booklet on gaming, and a color coded lapel button which affords full recognition by Casino representatives. These amenities are provided by and paid for in large part by the Casino.

In 1965, the Interstate Commerce Act was amended to permit any person injured by a "clear and patent violation" of certain sections of the Act, including § 306, to apply to a federal district court for injunctive relief under § 322(b)(2). Before the amendment, only the Commission could seek injunctive relief when a carrier operated without a certificate of public convenience and necessity. The House Report stated that the 1965 amendment of § 322(b) was intended

to afford injured parties a measure of self-protection against operations which are openly and obviously unlawful. The words "clear and patent" are used and are intended as a standard of jurisdiction rather than as a measure of the required burden of proof. 1965 U.S.Code Cong. & Admin.News, Vol. 2, 2923, 2931.

Plaintiff relies upon this self-help provision, § 322(b)(2), and contends that Greyhound's bus operation between Philadelphia and Atlantic City is not authorized by its certificate and is in "clear and patent" violation of § 306(a). In response, Greyhound argues that the challenged service is a "special operation" round trip, sightseeing or pleasure tour specifically authorized by its certificate and, therefore, does not violate § 306(a).⁴ Greyhound also contends that in any event its services are not in "clear and patent" violation of the section. The Court agrees with Transport and rejects the argument that the defendant's service is authorized under its limited certificate.

What constitutes a "special operation" in round trip, sightseeing or pleasure tours was discussed and considered fully in Asbury Park-New York Transit Corp. v. Bingler Vacation Tours, Inc., 62 M.C.C. 731 (1954). At page 739 of that frequently cited opinion such service was defined as all passenger operations which are neither "ordinary day-to-day scheduled regular-route common carriage of passengers" nor "charter operations in which a group organized by someone other than the carrier is sold the exclusive use of a vehicle." The Commission noted in its discussion that round trip sightseeing or pleasure tours in special operations must include:

something substantial in addition to, or different from, bare expeditious transportation between two points which factor is the fundamental characteristic of ordinary regular-route passenger-carrier service. Thus, if some "substantial" accessorial or different service is not provided the operation must be classed as that of an ordinary regular-route carrier. . . . When, however, a carrier holding tour authority on a "radial or territorial basis" undertakes to set up a tour of 1 day or less between 2 specific points it then becomes important that something extra and something substantial be added to the bare transportation involved. If regularity, frequency and expeditious service are introduced as additional factors in such point-to-point operation, then progressively it becomes even more important that these characteristics of an ordinary passenger operation not predominate in the service which is offered and provided to its patrons. (Emphasis added.)

Id. at 745-46.

Greyhound contends that the extras its passengers receive in connection with their transportation to the Casino are "substantial" and therefore meet the Asbury Park test. This Court does not agree with that position nor does the Commission in its amicus memorandum.⁵ The Asbury Park ruling did not list the...