WJ Dillner Transfer Company v. United States
Decision Date | 08 February 1963 |
Docket Number | Civ. A. No. 62-516. |
Citation | 214 F. Supp. 941 |
Parties | W. J. DILLNER TRANSFER COMPANY, Plaintiff, v. UNITED STATES of America and Interstate Commerce Commission, Defendants, Middle Atlantic Conference, Pennsylvania Railroad Company, and Central States Motor Freight Bureau, Inc., Intervenors. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Ernie Adamson, Pittsburgh, Pa., for plaintiff.
Lee Leovinger, John H. D. Wigger, U. S. Dept. of Justice, Washington, D. C., for United States.
Robert W. Ginnane, Fritz R. Kahn, I. C. C., Washington, D. C., for I. C. C.
Bryce Rea, Jr., Watkins & Rea, Washington, D. C., John A. Vuono, Delisi & Wick, Pittsburgh, Pa., for Middle Atlantic Conference, intervenor.
Donald A. Brinkworth, Pittsburgh, Pa., for Pennsylvania Railroad, intervenor.
Earl E. Meisenbach, Chicago, Ill., John A. Vuono, Delisi & Wick, Pittsburgh, Pa., for Central States Motor Freight Bureau, intervenor.
Before STALEY, Circuit Judge, GOURLEY, Chief District Judge, and WILLSON, District Judge.
This is an action to annul, vacate and set aside an Order of the Interstate Commerce Commission. A Three Judge Court was empaneled to hear and determine this matter pursuant to the provisions of Section 2284 of Title 28 United State Code by Order of Chief Judge John Biggs, Jr., Third Judicial Circuit entered September 13, 1962. Thereafter, Middle Atlantic Conference, Pennsylvania Railroad Company and Central States Motor Freight Bureau, Inc., were permitted to intervene.
Plaintiff filed a motion for summary judgment. Defendants in their answer sought dismissal of the complaint only. At the hearing all parties agreed that there was no dispute as to any issues of fact. In order, however, that the record be clear, defendant was permitted to and has filed a formal written motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. At the hearing there were no matters outside the pleadings presented to the court which in any wise affect the decision except the tariff which is referred to in the complaint and answer and submitted to the court by plaintiff. The discussion and conclusion which follows is based solely on the pleadings, affidavits* and appendix attached to plaintiff's motion, the tariff submitted, Interstate Commerce Commission and court decisions relating to the particular matter now before the court.
On May 29, 1962 plaintiff filed with the Commission its tariff MF-I.C.C. No. 16 in proper form and manner. The tariff as filed was to become effective June 30, 1962. It was thus filed 32 days prior to its effective date. Protests to the tariff were filed on June 18, 1962 and June 19, 1962. On June 28, 1962, Division 2 of the Commission rejected the tariff and directed that it be returned to the plaintiff. The reason given by the Commission in its Order rejecting the tariff was the following:
"It further appearing, that W. J. Dillner Transfer Company has filed with this Commission its tariff MF-I.C.C. No. 16, which states certain rates, charges, and provisions for transportation services in interstate and foreign commerce for which the said carrier holds no operating authority as required by Section 206 of the Interstate Commerce Act, and that said tariff publication is therefore unlawful and may not be retained in the Commission's files:"
Plaintiff contends that the action of the Commission in rejecting the tariff in the manner in which it did, was arbitrary and capricious and without authority in law. It is contended by plaintiff that the written protests by the intervening defendants were filed with the Suspension Board of the Commission but that the Suspension Board took no action in suspending the tariff. Therefore, says plaintiff, the tariff being in proper form and manner should have been permitted to become effective on June 30, 1962. Further, says plaintiff, it was summarily and arbitrarily treated in the manner in which its application for a hearing was rejected. In support of this charge plaintiff reviews the record which shows that notice of rejection was served on plaintiff June 29th. The next day, June 30th, plaintiff filed a petition for reconsideration and vacation of the Order rejecting the tariff. This application was denied by an Order of the Commission entered July 3, 1962. Plaintiff contends that it was entitled to a hearing on its application for reconsideration of the rejection order. Plaintiff's prayer for relief is that the rejection order of the Commission be vacated and set aside and that the tariff be reinstated, and in the alternative that a hearing be directed.
The foregoing is a brief summary of the record made before the Commission and from it the issue seems to be clear. The defendants' contention before this court is that even though the tariff, on the basis of its outward appearance, may have been received for filing, such filing is no bar to its subsequent rejection prior to its effective date, where following the filing of protests by other carriers and answers thereto by plaintiff, the Commission determines that the tariff has no proper place in its files. The reason, say the defendants, is that time and time again the Commission had determined that Dillner had no authority to transport firebrick and ferro alloys. The Commission contends that it has the power to reject a tariff without a hearing which names rates for the interstate transportation of commodities for which the carrier holds no operating authority. The tariff as filed has been exhibited to the court. A decision of this court, W. J. Dillner Transfer Co. v. Interstate Commerce Commission, 193 F.Supp. 823, W.D.Pa.1961, held that Dillner had no authority under its certificate to transport firebrick. In its brief the defendant refers to prior Orders of the Interstate Commerce Commission which show that plaintiff is without authority to transport firebrick or ferro alloys. The several Orders on this subject by the Commission were:
It is noticed in regard to the foregoing action of the Commission that in its brief Dillner contends that Tariff MF 16 does not contain the words "firebrick or ferro alloys" except those requiring special equipment to load, unload or transport. However, on examination of the tariff exhibited to the court, pp. 259 thru 273 show "Refractory Products, High Temperature, on pallets," under which is listed "brick, shapes; ore, chrome; Pressed Brick;". Ferro Alloys is likewise listed in Section 6 pp. 49 through 55. At the argument counsel for plaintiff mentioned the rather voluminous document comprising the tariff as filed consisting of 285 pages and that the two commodities mentioned in any event covered but a small portion of the commodity rates filed and therefore the commission was arbitrary in rejecting the whole tariff. Counsel for the Commission, however, in reply stated that Dillner's tariff could be refiled and no doubt would be accepted on deletion of the matters covering commodities for which it had no authority. Plaintiff's burden in this case and other cases of this kind is heavy. It must show that the Commission Orders were invalid as unjust and unreasonable. The prior case decided that point, W. J. Dillner v. Interstate Commerce Commission, supra. This court concludes that the language in the new tariff seeks to establish rates on commodities, i. e. firebrick...
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