WJ Dillner Transfer Co. v. United States

Decision Date05 December 1951
Docket NumberCiv. No. 8677.
Citation101 F. Supp. 506
PartiesW. J. DILLNER TRANSFER CO. v. UNITED STATES et al.
CourtU.S. District Court — Eastern District of Pennsylvania

Ernie Adamson, Pittsburgh, Pa., for plaintiff.

Edward C. Boyle, U. S. Atty., Pittsburgh, Pa., Daniel W. Knowlton, Washington, D. C., for defendant.

J. Ninian Beall, Washington, D. C., for U. S. A. C. Transport, Inc. intervening defendant.

Before STALEY, Circuit Judge, and BURNS and STEWART, District Judges.

STEWART, District Judge.

The plaintiff, W. J. Dillner Transfer Company, brings this action to vacate and set aside two orders of the Interstate Commerce Commission relative to the application of one U. S. A. C. Transport, Inc. for an extension of authority to authorize it to transport airplanes or parts thereof between various points in the United States. The application for extension of authority was filed on May 27, 1948. On April 11, 1949, after a series of hearings conducted in various parts of the United States, F. Roy Linn, one of the examiners for the Interstate Commerce Commission filed a report and recommended an order proposing to grant the application of U. S. A. C. Transport, Inc. Thereafter, on October 19, 1949, the Local Cartage National Conference, Inc. filed a petition for leave to intervene, reopen, rehear and vacate the recommended order granting certificate to U. S. A. C. Transport, Inc. (hereinafter referred to as "petition for rehearing"). Annexed to this petition was a list of the members of the Heavy Hauling, Machinery Moving & Erecting Section of the Local Cartage National Conference, Inc.; W. J. Dillner Transfer Co., plaintiff here, was listed as such a member and therefore may be treated as having been effectually a party to the petition for rehearing. On December 3, 1949, the Interstate Commerce Commission denied the petition for rehearing and subsequently, on January 18, 1950, granted and issued to U. S. A. C. Transport, Inc. a Certificate of Public Convenience and Necessity. These are the two orders involved in this proceeding.

Subsequently, plaintiff moved for summary judgment, under the theory that only questions of law were involved. Although plaintiff was given opportunity to do so, and although defendants offered a number of exhibits in support of their opposition to the prayers of plaintiff, plaintiff elected to offer no testimony in support of its case. Thus, the hearing on the motion for summary judgment constituted a final hearing of the case.

A motion for summary judgment may be granted only where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law". Rule 56(c) Federal Rules of Civil Procedure, 28 U.S. C. following § 723c. Toebelman v. Missouri-Kansas Pipe Line Co., 3 Cir., 1942, 130 F.2d 1016; U. S. v. Costa, D.C.W.D.Pa. 1951, 11 F.R.D. 492; Michel v. Meier, D.C.W.D.Pa.1948, 8 F.R.D. 464. All doubts are resolved against the moving party. Sarnoff v. Ciaglia, 3 Cir., 1947, 165 F.2d 167.

Plaintiff contends that the two orders referred to above should be vacated and set aside as a matter of law on either of two grounds and that none of the fact issues involved are material thereto. First, plaintiff argues that it did not have the formal notice of the hearings on the U. S. A. C. application required by the general order of the Commission issued pursuant to §§ 205(e) and 206(b) of the Interstate Commerce Act, 49 U. S. C. §§ 305(e) and 306(b). Second, plaintiff contends that the orders should be vacated for the reason that the hearings on the application of U. S. A. C. Transport, Inc., were held before a hearing officer of the Commission who was not a hearing officer appointed under the Administrative Procedure Act, 5 U.S.C. § 1001 et seq.1

Section 205(e) of the Interstate Commerce Act provides: "In accordance with rules prescribed by the Commission, reasonable notice shall be afforded, in connection with any proceeding under this chapter, to interested parties and to the board of any State, or to the governor if there be no board, in which the motor carrier operations involved in the proceeding are or are proposed to be conducted, and opportunity for intervention in any such proceeding for the purpose of making representations to the Commission or for participating in a hearing, if a hearing is held, shall be afforded to all interested parties."

Section 206(b) provides, in part, that "Application for certificates shall be made in writing to the Commission, be verified under oath, and shall be in such form and contain such information and be accompanied by proof of service upon such interested parties as the Commission shall, by regulation, require. * * *"

Pursuant to these sections, the Commission issued a general order on December 7, 1940, to the effect that a notice of the filing of an application for motor carrier certificates and permits and for authority to change or extend operations in interstate or foreign commerce under the Interstate Commerce Act "* * * must also be delivered, in person or by registered or receipted mail, to each motor carrier * * *, known to the applicant, with whose service the operations described in such application are or will be directly competitive. * * *"

While plaintiff's first contention is variously stated in the complaint, written brief, and in oral argument, it seems clear that the plaintiff's position in this respect is that it, as a potential competitor, was entitled to formal notice under the Commission's general order; that it did not receive such notice; and that therefore the Commission erred in refusing to grant the petition for rehearing. Plaintiff does not attack the reasonableness of the Commission's general order with respect to notice, but contends that there was no compliance with this order in this case (see Transcript, pp. 73 and 74). In answer to this contention, the defendants argue that there is a material issue of fact as to whether the plaintiff was entitled to notice, and that therefore the motion for summary judgment should be denied on this ground. Plaintiff has neither alleged nor attempted to prove facts bringing him within the provisions of the Commission's general order with respect to notice. It is alleged merely that the plaintiff and other motor carriers had authority which was potentially competitive to that requested and subsequently granted to U. S. A. C. Transport, Inc. It was admitted by counsel for the government, in oral argument, that plaintiff had authority which was potentially competitive, in a limited area. However, it seems clear that a mere showing of potential competition does not satisfy the requirements of the general order of the Commission that notice need be given only to motor carriers "known to the applicant, with whose service the operations described in such application are or will be directly competitive" (emphasis supplied). Certainly, this order contemplates actual rather than potential competition.

Although this disposes of plainti...

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4 cases
  • Florida Citrus Commission v. United States
    • United States
    • U.S. District Court — Northern District of Florida
    • September 7, 1956
    ...the administrative proceedings and he will not be heard to complain of the failure to give formal notice. W. J. Dillner Transfer Co. v. United States, D.C.W.D. Pa.1951, 101 F.Supp. 506; C. E. Hall & Sons, Inc., v. United States, D.C.Mass. 1950, 88 F.Supp. 596. We think it doubtful that the ......
  • Widmer v. Fort Smith Vehicle & Machinery Corp.
    • United States
    • Arkansas Supreme Court
    • May 27, 1968
    ...not to avail himself of an opportunity to offer testimony in support of his case was recognized in W. J. Dillner Transfer Company v. United States, 101 F.Supp. 506 (W.D.Pa.1951). I can perceive no sound reason why one may not stand on his right to a summary judgment just as he can stand on ......
  • Northern Valley Transfer, Inc. v. ICC
    • United States
    • U.S. District Court — District of New Jersey
    • March 24, 1961
    ...of discretion by the Commission. We are, therefore, without authority to interfere with its actions. See W. J. Dillner Transfer Co. v. United States, D.C.Pa.1951, 101 F. Supp. 506, affirmed 344 U.S. 883, 73 S.Ct. 180, 97 L.Ed. The complaint will be dismissed for the reasons hereinabove stat......
  • Pinkett v. United States
    • United States
    • U.S. District Court — District of Maryland
    • June 3, 1952
    ...the issuance of the certificate must be restrained. On this point the situation is quite different from that in W. J. Dillner Transfer Co. v. U. S., D.C.Pa., 101 F.Supp. 506, where the plaintiffs had actual knowledge of the proceedings, but contended that they were entitled to more, namely,......

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