Petition for Writ of Certiorari — Pennsylvania v. United States
Supreme Court brief1974
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IN THE
Supreme Court of the Hnited States
vi J- i200
COMMONWEALTH OF PENNSYLVANIA and
PENNSYLVANIA PUBLIC UTILITY COMMISSION,
Petitioners,
v.
UNITED STATES OF AMERICA, et al.,
Respondents.
PETITION FOR A WRIT OF CERTRIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
ISRAEL PACKEL,
Attorney General
Capitol Annex
Harrisburg, Pa. 17120
MICHAEL von MOSCHZISKER,
Deputy Attorney General
206 State Office Building
Philadelpha, Pz. 19130
GORDON P. MacDOUGALL
Special Assistant Attorney General
705 Ring Building
Washington, D.C. 20036
EDWARD MUNCE,
Acting Counsel
ALFRED N. LOWENSTEIN,
Assistant Counsel
Pennsylvania Public Utility Commission
118 North Office Building
Harrisburg, Pa 17120
February, 1974 Attorneys for Petitioners
THE CASILLAS PRESS. !NC.-1717 K Street. N. W.—Washington. 0. C.-223-:1220
Cen Peer 8 =e
(i)
INDEX
Page
I ee N6 Gc ca we ee 1
JURISDICTION . 2
QUESTION PRESENTED. 2
SeAruree mewaawee . ww te el 3
ee te ek Ge ee ye a 3
SR 8 SP) Gy ks gt oe we, ee ek 3
Court Proceedings
REASONS FOR GRANTING THE WRIT ...... . 6
The Third Circuit Has Decided an Important
Question of Federal Law Which Should Be
Settled by This Court... . eek Ae eae 6
I. LC.C. Orders Involving a Railroad in
Reorganization Are not Made by Referral
peso eet Gat 8
II. The Reorganization Court Cannot Cut Off
Pennsylvania’s Remedies Under the I.C.C.
ee ee fee 9
Ill. The Decision of the Court of cea Is
Inconsistent with ItsOwn En Banc Ruling . . . . 10
Dr Set Ne ke ee OD
Appendix A:
Opinion of the United States Court of Appeals
For the Third Circuit, Filed September 20, 1973,
as amended November 2,1973 . . . . . ..... 3a
Judgment of the United States Court of Appeals
For the Third Circuit, Dated September 20.1973 . . . . Ta
(ii)
Page
Order of the United States Court of Appeals
For the Third Circuit denying Petition for
Rehearing, dated November 5,1973 . . . - - + =: - 8a
Order of the United States District Court for
the District of New Jersey Denying Application
for Leave To File an Action in the United States
District Court for the Middle District of Penn-
sylvania and Granting Other Relief, dated
ER I Ce gs lglg ew a ack | ae
Appendix B:
Order of the United States Court of Appeals
For the Third Circuit Affirming Judgment of
the United States District Court dated January
ee ty et Ens oe ea Ae eee ee
Letter Opinion of the United States District
Court for the District of New Jersey, dated
Mea WINE 5 ee Se es 12a
Order of the United States District Court for
the District of New Jersey To Consummate
Settlement with the Lehigh Coal & Navigation
Company, dated May 15,1973 . . - - - - © s+ = 15a
Appendix C:
Order of the Interstate Commerce Commission
Denying Petitions for Reconsideration, Finance
Docket Nos. 26659, et al., Service Date September
OS er Ca a hi cies ie AL ee 17a
Order of the Interstate Commerce Commission
Denying Petitions for Reconsideration, Investiga-
tion and Suspension Docket No. 8667, Service
Date, September 11,1972. . . - - 2 ee store 20a
(iii)
28 U.S.C. 1336(aXbXKc)
28 U.S.C. 1398(aX(b)
28 U.S.C. 2325
TABLE OF AUTHORITIES
Cases:
1.C.C. v. Atlantic Coast Line R. Co.,
383 US. 576 (1966)
Callaway v. Benton,
336 U.S.132 .
Central R. Co. of New Jersey - Abandonment,
342 1.C.C. 227
Chicago & N.W. Ry. Co. v. United States,
52 F. Supp. 63 (N.D. Ill. 1943),
Affd 320 U.S. 718 . P
In Re Central Railroad Company of New Jersey,
486 F.2d 1124 go, tag) a
In Re Central Railroad Company of New Jersey,
a ee Roni 2). ME int
In Re Missouri Pac. R. Co.,
93 F. Supp. 852 (E.D. Mo. 1950)
Myers v. Bethlehem Corp.,
303 U.S. 41 (1938) .
New Haven Inclusion Case,
399 U.S. 392 (1970)
10
(iv)
Outland v. C.A.B.,
284 F.2d 224 (D.C. Cir. 1970)
Pennsylvania v. United States,
Civil No. 73-63 (M.D. Pa.) .
Routing via Oak Island Jct., New Jersey,
341 1.C.C. 129
Thompson v. Texas Mexican R. Co.,
328 U.S. 134 .
R. D. Timpany v. State of New Jersey, et al.,
42 U.S.L.W. 3384
United States v. Tucker Truck Lines,
344 U.S. 33 (1952) .
Yonkers v. United States,
320 U.S. 685 (1944)
Statutes and Regulations:
Bankruptcy Act, 11 U.S. C. 205, Section ro ae
49 C.F.R. 1100.101 .
28 U.S.C. 12541)
28 U.S.C. 1336
28 U.S.C. 1398
28 U.S.C. 2101(c)
28 U.S.C. 2325
49 U.S.C. 1(18)-(20)
49 U.S.C. 17(6)
Page
10
IN THE
Supreme Court of the United States
No.
COMMONWEALTH OF PENNSYLVANIA and
PENNSYLVANIA PUBLIC UTILITY COMMISSION,
Petitioners,
V.
UNITED STATES OF AMERICA, et al.,
Respondents.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT
The Petitioners, Commonwealth of Pennsylvania and Penn-
sulvania Public Utility Commission, respectfully pray that a
writ of certiorari issue to review two judgments of the United
States Court of Appeals for the Third Circuit, entered in this
proceeding on September 20, 1973 as amended November 2,
1973,! and on January 18, 1974.
OPINIONS BELOW
The first opinion of the U.S. Court of Appeals is reported
as In Re Central Railroad Company of New Jersey, 486
F.2d 1124, and is printed in Appendix A hereto (App., la-
I Rehearing denied November 5, 1973.
2
6a). The unreported order of the reorganization court for
The Central Railroad Company of New Jersey (No. 550) is
printed in Appendix A (App., 9a-1 0a).
The second opinion (judgment order) of the U.S. Court
of Appeals is not reported, and is printed in Appendix B
hereto (App., lla). The unreported order of the same re-
organization court (No. 583), together with the letter-opinion
of the court, are printed in Appendix B (App., 1 2a-16a).
The opinions of the Interstate Commerce Commission
are reported as Central R. Co. of New Jersey - Abandonment,
342 1.C.C. 227. and Routing via Oak Island Jct., New Jer-
sev, 341 L.C.C. 129. The unreported orders denying peti-
tions for rehearing are printed hereto in Appendix C (App.
1 7a-20a).
JURISDICTION
The first judgment of the U.S. Court of Appeals was
entered on September 20 as amended November 2, 1973,
rehearing denied November 5, 1973 (App., 7a-8a). The
second judgment was entered on January 18, 1974 (App.
lla). The jurisdiction of this court is conferred by 28
U.S.C. 1254(1), 2101 (c).
QUESTION PRESENTED
Whether judicial review of line abandonment and tariff
routing orders of the Interstate Commerce Commission, in-
volving a railroad in reorganization, should be instituted in
the reorganization court, or whether such review should
take place in a three-judge district court under the Urgent
Deficiencies Act and venue provisions of the Judicial Code.
3
STATUTES INVOLVED
The statutes principally involved are sections 1336, 1398
and 2325 of the Judicial Code, 28 U.S.C. 1336, 1398 and
2325. They are set forth in Appendix C (App.. 21a-22a).
STATEMENT
This case concerns the proper federal court which should
review orders of the Interstate Commerce Commission where
one or more of the railroads involved in the agency pro-
ceeding is in reorganization.
1.C.C. Proceedings
The Central Railroad Company of New Jersey (CNJ) is
in reorganization.” In May, 1971, it filed various abandon-
ment applications with the Interstate Commerce Commis-
sion (I.C.C.), pursuant to section 1(18)-(20) of the Inter-
state Commerce Act? seeking, as here pertinent, to aban-
don its operation over leased lines in Pennsylvania, which
extend generally from the New Jersey-Pennsylvania boundary
at Phillipsburg to Scranton. The leased lines are known as
the Lehigh & Susquehanna Railroad (L&S). The L&S is
owned by Reading Company (Reading),4 subject to a lease-
hold interest held by Lehigh Coal & Navigation Company
(LC&N).
2 No. B-401-67 (D.N.J.). Section 77 of the Bankruptcy Act, 11
U.S.C. 205.
3 49 U.S.C. 1(18)420).
4 Reading is in reorganization. Bank. No. 71-828 (E.D. Pa.)
4
Lehigh Valley Railroad Company (Lehigh Valley)> and
Reading filed rival applications to extend their operations®
over the L&S lines, subject to prior approval of CNJ’s ap-
plications for abandonment of operation.
Beginning in September, 1971, CNJ and its connecting
railroads filed various tariff schedules naming changes in
routes, so as to substitute interchange points for traffic
moving over the L&S lines. These tariff schedules were
suspended pursuant to section 15(7) of the Interstate Com-
merce Act.’
Commonwealth of Pennsylvania and Pennsylvania Public
Utility Commission, (collectively, ““Pennsylvania’’), vigorous-
ly opposed CNJ’s withdrawal from the Commonwealth, and
also opposed the related tariff changes.
CNJ on April 1, 1972, abruptly ceased operations in
Pennsylvania, while the I.C.C. proceedings were still in
progress. CNJ did this by virtue of an order from its re-
organization court, which was affirmed without opinion by
the Court of Appeals. 455 F.2d 989 (3rd Cir. 1972), cert.
den. 409 U.S. 889.
The I.C.C. on May 26, 1972 (served June 2), issued its
initial decisions in the abandonment-extension case (Finance
Docket No. 26659), and in the tariff routing case (Investi-
gation & Suspension Docket No. 8667). The I.C.C. con-
cluded to grant CNJ’s abandonment application and to grant
Lehigh Valley’s extension application, subject to various
routing conditions. 342 I.C.C. 227 and 341 LC.C. 129.
Pennsylvania, and other parties, petitioned for reconsidera-
5 Lehigh Valley is in reorganization. Bank No. 70-432 (E.D. Pa.)
© The applications were considered under 49 U.S.C. 1(18)}{20).
The Reading application did not include the entire L&S lines.
749 US.C. 15(7).
5
tion.’ These petitions were denied August 23, 1972 (served
September 11).
Court Proceedings
Pennsylvania applied to the CNJ reorganization court for
permission to review the CNJ abandonment orders in the
U.S. District Court for the Middle District of Pennsylvania:
Pennsylvania instituted an action to review the Lehigh Val-
ley and Reading extension orders in the U.S. District Court
for the Middle District of Pennsylvania.?
Pennsylvania was required to seek leave of the CNJ re-
organization court, prior to the institution of judicial review
of the CNJ abandonment and tariff routing orders, by virtue
of an earlier court order which enjoined all persons from
instituting or maintaining actions affecting CNJ’s operations
in Pennsylvania in any court other than the CNJ reorgani-
zation court, or without obtaining permission of that court
to do so.
The CNJ reorganization court denied Pennsylvania’s
petition for leave to sue in the U.S. District Court for the
Middle District of Pennsylvania. No opinion was rendered.
(App., 12a-16a). Pennsylvania appealed that determination.
The Court of Appeals affirmed both decisions. In its
first opinion, the Court of Appeals reasoned that Congress
intended appeals of abandoment orders in railroad reorgan-
ization cases to be reviewed in the context of the reorgani-
zation proceeding and not in a court of coordinate jurisdic-
tion. The court suggested that Pennsylvania should have
appealed from Order No. 514, entered July 5, 1972, which
8 49 U.S.C. 17(6); 49 C.F.R. 1100.101.
9 Civil No. 73-63, Pennsylvania v. United States (M.D. Pa.)
6
authorized CNJ’s trustee to implement the I.C.C. orders of
May 26, 1972, prior to the disposition by the I.C.C. of
petitions for reconsideration on August 23, 1972. The
court said that the reorganization court could have convened
a three judge district court under the Urgent Deficiencies
Act at the hearing on Order No. 514.
The court considered the I.C.C.’s consideration of the
abandonments as being a “referral’’ case governed by 28
U.S.C. 1336(b) and 1398(b). Those sections of the Judicial
Code require that the district court which refers a question
or issue to the I.C.C. for determination shall have exclusive
jurisdiction and venue of any civil action to enjoin any
order of the I.C.C. arising out of such referral. (App., 21a).
The Court of Appeals specifically relied also upon its
earlier decision, 455 F.2d 989, resulting in the abandon-
ment of CNJ’s lines in Pennsylvania.
REASONS FOR GRANTING THE WRIT
THE THIRD CIRCUIT HAS DECIDED AN IMPORTANT
QUESTION OF FEDERAL LAW WHICH SHOULD
BE SETTLED BY THIS COURT.
The decisions below require that public agencies bring a
“civil action” in the railroad reorganization court to review
L.C.C. orders affecting the carrier in reorganization, rather
that in a statutory three-judge court. Here, Pennsylvania
resides and has its principal offices within the jurisdiction
of the U.S. District Court for the Middle District of Penn-
sylvania, and not in the District of New Jersey. Moreover,
a railroad reorganization court is a single-judge court. whereas
judicial review of I.C.C. orders under the Urgent Deficiencies
Act takes place in three-judge district courts which are con-
vened by the Chief Judge of the Circuit. The United States
-
of America is the defendant in such actions. 28 U.S.C.
2321-25.
Heretofore, it has been the settled practice to institute
actions directly in three-judge courts against the United
States to enjoin I.C.C. abandonment and tariff routing
orders. Indeed, the Supreme Court decided this question
in Thompson v. Texas Mexican R. Co., 328 U.S. 134, a
case involving a railroad in reorganization under section 77
of the Bankruptcy Act. The Court stated, 328 U.S. at 151,
fn. 11:
If the (abandonment) order of the Commission
were challenged, its review could of course be
had only in the manner provided by statute.
See El Dorado Oil Works v. United States,
328 U.S. 12.
The exception to the rule that I.C.C. abandoment orders
are reviewed in three-judge courts is where the abandon-
ments are considered by the I.C.C. together and as part of
the plan of reorganization under section 77(e) and 77(f)
of the Bankruptcy Act. Chicago & N.W. Ry. Co. v. United
States, 52 F. Supp. 65 (N.D. Ill. 1943), aff'd 320 U.S. 718:
New Haven Inclusion Case, 399 U.S. 392, 429 (1970): In
Re Missouri Pac. R. Co., 93 F. Supp. 852, 863 (E.D. Mo.
1950). The instant proceedings are not part of the plan
of reorganization. At the request of CNJ, the I.C.C. has
deferred the institution of any hearings on CNJ’s plan of
reorganization, and the I.C.C. specifically declined to con-
solidate the abandonments with any plan of reorganization.
There are a number of railroads undergoing reorganiza-
tion in the Northeastern part of the United States. The
question presented is of considerable importance to the
orderly administration of the judicial system.
8
I. LC.C. Orders Involving a Railroad in
Reorganization Are not Made by Referral
From a District Court.
Congress in 1964 amended sections 1336 and 1398 of
the Judicial Code, 28 U.S.C. 1336, 1398, to provide where
the district court refers a question or issue to the I.C.C.,
the court which referred the question shall have exclusive
jurisdiction and venue of a civil action to enjoin or set
aside any order of the I.C.C. arising out of the referral,
and such action shall be filed within 90 days from the date
the I.C.C. order becomes final. There is nothing in the
legislative history of these amendments to the Judicial Code
to suggest that instructions by a reorganization court that
the trustee file certain applications and tariffs with the
1.C.C. makes any action by the trustee a “referral’’ ques-
tion. See: LCC. v. Atlantic Coast Line R. Co., 383
U.S. 576 (1966).
Indeed, a “‘district court” is not the same as a “‘reorgan-
ization court”, and the concept of a “civil action” being
filed in a “reorganization court” has obvious difficulties.
The I.C.C. decisions authorizing abandonments and
tariff routing changes were rendered exclusively under the
provisions of the Interstate Commerce Act. Judicial review
should take place in the statutory manner provided for
review of I.C.C. orders, i.e., under the Urgent Deficiencies
Act. This court observed in Callaway v. Benton, 336 U.S.
132, 142, that “Congress did not give the bankruptcy
court exclusive jurisdiction over all controversies that in
some way affect the debtor’s estate.”
The decision of the Court of Appeals, in effect, means
that all I.C.C. orders of any type, affecting a railroad in
reorganization, can be made subject to judicial review in
a single judge court, rather than be subject to judicial
review in statutory three-judge courts.
9
Il. The Reorganization Court Cannot Cut
Off Pennsylvania’s Remedies Under the
I.C.C.’s Rules.
The Court of Appeals relies heavily upon Order No. 514
of the reorganization court, entered July 5, 1972, suggest-
ing that Pennsylvania should have taken an appeal from that
court order which authorized CNJ’s trustee to implement
the I.C.C. orders. But the I.C.C. orders of May 26, 1972
were subject to petitions for reconsideration.
There clearly was no basis for an appeal from the July
5 order. There was no change in the status quo — CNJ had
ceased operations in Pennsylvania several months prior thereto.
The authority of the CNJ reorganization court flowed from
the 1.C.C. orders, and those orders were subject to petitions
for reconsideration.
It is premature to progress judicial review of 1.C.C. orders
while petitions for reconsideration are pending. The I.C.C.
orders were not “final” at the time of hearing on Order
No. 514. As Judge (now Chief Justice) Burger noted in
Outland v. C.A.B., 284 F.2d 224 (D.C. Cir. 1970):
“However, while making judicial review avail-
able without a motion for rehearing, that
statute did not operate to repeal the law
with respect to finality. Where a motion
for rehearing is in fact filed there is no fi-
nal order until the rehearing is denied, as
we said in Braniff Airways, Inc. v. Civil
Aeronautics Board, supra.”
Further, Pennsylvania cannot urge upon review of an
1.C.C. order any contentions not previously urged in the
agency proceeding by some party. Thus to require judicial
review prematurely would act to eliminate substantive nights.
United States v. Tucker Truck Lines, 344 U.S. 33, 36-38
(1952): Yonkers v. United States, 320 U.S. 685, 688 (1944).
10
There is a duty of a party to exhaust his administrative
remedies before seeking judicial review of the agency deter-
mination. Myers v. Bethlehem Corp., 303 U.S. 41, 50-51
(1938).
The theory of the Court of Appeals is that review of the
1.C.C. orders should be in the context of the reorganization
proceeding. However, the reorganization procedure con-
flicts with the agency’s procedure regarding petitions for
reconsideration, established by statute as well as regulation.
49 U.S.C. 17(6); 49 C.F.R. 1100.101.
Ill. The Decision of the Court of Appeals
Is Inconsistent with Its Own En Banc
Ruling.
The Court of Appeals placed reliance upon its 1972
decision permitting CNJ to cease operations in Pennsyl-
vania by virtue of the order of the CNJ reorganization
court, and without the necessity of prior approval from
the Interstate Commerce Commission. Yet that decision
was effectively overruled a year later by the en banc deci-
sion in In Re Central Railroad Company of New Jersey,
485 F.2d 208.
This court denied certiorari on January 4, 1974. R. D.
Timpany v. State of New Jersey, et al., 42 U.S. Law Week
3384.
1]
CONCLUSION
For these reasons, the Court should issue a writ of cer-
tiorari to review the judgments of the Third Circuit.
February, 1974
Respectfully submitted,
ISRAEL PACKEL,
Attorney General
Capitol Annex
Harrisburg, Pa. 17120
MICHAEL von MOSCHZISKER,
Deputy Attorney General
206 State Office Building
Philadelphia, Pa. 19130
GORDON P. MacDOUGALL,
Special Assistant Attorney General
705 Ring Building
Washington, D.C. 20036
EDWARD MUNCE,
Acting Counsel
ALFRED N. LWENSTEIN,
Assistant Counsel
Pennsylvania Public Utility Commission
118 North Office Building
Harrisburg, Pa. 17120
Attorneys for Petitioners
la
APPENDIX A
UNITED STATES COURT OF APPEALS
For tHe Tuirp Circuit
No. 73-1110
—_——
In the Matter of
THE CENTRAL RAILROAD COMPANY
OF NEW JERSEY,
Debtor
COMMONWEALTH OF PENNSYLVANIA and
PENNSYLVANIA PUBLIC UTILITY COMMISSION,
Appellants
AppraL From tre Unitrep States District Count FOR THE
Districr oF NEW JERSEY
(D. C. No. B 401-67)
Argued July 20, 1973
Before Vax Dusen and Weis, Circuit Judges.
Reargued September 12, 1973
Before Vax Dusex, Rosen and WEIs, Circuit Judges.
Israel Packel,
Attorney General,
Harrisburg, Pa.
Dante Mattioni,
Deputy Attorney General,
Philadelphia, Pa.
2a
Gordon P. MacDougall,
Special Assistant Attorney General,
Washington, D.C.
Philip P. Kalodner,
Counsel,
Edward Munce,
Assistant Counsel,
Alfred N. Lowenstein,
Assistant Counsel,
Pennsylvania Public Utility Commission,
Harrisburg, Pa.
Counsel for Appellants
Harlington Wood, Jr.,
Assistant Attorney General,
Washington, D.C.
Herbert J. Stern,
United States Attorney,
Newark, New Jersey
Morton Hollander, Esq.,
Irwin Goldbloom, Esq., and
James F. Dausch, Esq,.,
Attorneys,
Department of Justice,
Washington, D.C.
Counsel for United States of
America, Appellee
Stanley Weiss, Esgq.,
Carpenter, Bennett & Morrissey,
Newark, New Jersey,
Counsel for Trustee
Roger C. Ward, Esq,.,
Pitney, Hardin & Kipp,
Newark, New Jersey,
Counsel for Manufacturers
Hanover Trust Company
3a
Charles Danzig, Esq.,
Riker, Danzig, Scherer & Brown,
Newark, New Jersey
Counsel for Lehigh Coal &
Navigation Company
John P. Sheridan, Jr., Esq.,
Trenton, New Jersey,
Counsel for State of New Jersey
OPINION OF THE COURT
(Filed September 20, 1973)
(As amended November 2, 1973)
Per CuriaM:
This appeal challenges the right of a Section 77 re-
organization court to deny the Commonwealth of Penn-
sylvania and its Public Utility Commission leave to file
an action in the United States District Court for the Mid-
dle District of Pennsylvania to review orders of the Inter-
state Commerce Commission, concerning tariff routings and
authorizing the abandonment by the reorganization trustee of
certain lines in Pennsylvania and western New Jersey.!
After the debtor had lost more than 100 million dollars
from 1958-1971, the trustee presented in 1971 a “‘blue-
print for survival’’ to deal with a severe liquidity crisis
which threatened termination of all its operations. An
important part of this ‘‘blueprint’’ involved abandonment
of the debtor’s unprofitable operations in Pennsylvania?
and reduction of the debtor’s operations to six heavily
populated and industrialized north-central New Jersey
counties. On May 7, 1971, and thereafter the trustee, pursuant
to section 77(0) of the Bankruptcy Act (11 U.S.C. § 205(O)),
1. Order No. 550 dated December 20, 1972 (D.N.J. Bankruptcy No
401-67), contained this language, inter alia:
“at 26).0°5 Orveren that the petition for leave to file an action
against the United States of America in the United States District Court
for the Midd!e District of Pennsylvania to judicially review certain orders
of the Interstate Commerce Commission in Finance Docket No. 2063 9 and
in Investigation and Suspension Docket No. 8667 is denied;
2. These operations were to be conducted by the Lehigh Valley Railroad,
which operated parallel lines in Pennsylvania at that time.
4a
sought the approval of the reorganization court for abandon-
ment of vapious portions of lines operator by the debtor, in-
cluding these in Pennsylvania, and these applications eventually
resulted in Orders Nos. 410, 451 and 514 approving abandon-
ments. As a result of the May 7, 1971, and subsequent applica-
tions, the reorganization court authorized the trustee to file
requests for authorizations with the Commission for such
abandonments, which requests were granted on August 20,
1971, and May 26, 1972. On December 20, 1971, the
reorganization court issued Order 445, directing the trus-
tee to suspend all CNJ operations in Pennsylvania by
April 1, 1972, pending the Commission’s final decision on
the abandonment application, and enjoining all parties
from instituting or maintaining in any other court any
action affecting CNJ operations in Pennsylvania, or the
abandonment thereof, without the permission of the re-
organization court. This court affirmed Order 445, In the
Matter of Central Railroad Company of New Jersey,
Debtor, 455 F.2d 989 (3d Cir. 1972). On May 26, 1972, the
ICC granted the debtor permission to abandon all its lines
in Pennsylvania, subject to certain conditions. Central
Railroad Company of New Jersey-Abandonment, 342 1.C.C.
277 (1972). After hearing, the reorganization court,
3. The Commission used this language in its “Conclusions” at 288 and
290-91 :
“The overriding factor with which we are faced, is that since 1967, CNJ
has been debtor in reorganization under the Bankruptcy Act before the
United States District Court for the District of New Jersey. Its position
has continuously deteriorated, as have other railroads serving the New
York metropolitan area. CNJ now may be considered i extremis. During
and since 1970, its losses kave amounted to more than $1 million per
month. Under the circumstances, some form of drastic remedial action
became imperative. The subject application to abandon, and its various
parts, represents CNJ’s election, approved by the Reorganization, to seek
to terminate all operations in Pennsylvania, and to reduce and restructure
its lines and operations in New Jersey. The application is properly filed
under section 1(18)-(20).
“[T]he record as it stands does support our concluding that the fully
distributed net income deficits in Pennsylvania have been sizeable each
year, even prior to payment of the annual lease rental to LC&N for
operation over the lines of L&S. . . . Also, the record establishes, and we
find, that the State of New Jersey for some years has provided various
forms of railroad passenger and freight service subsidies and other financial
aid to CNJ. Obviously, it sought to assure the capability of CNJ to
continue in business as a railroad in New Jersey. On the other hand, the
5a
by order No. 514 dated July 5, 1972, authorized (a) com-
pliance by the trustee with such conditions, and (b) the aban-
donments of the Pennsylvania lines.‘ No appeal was
taken from such order.’ However, by motion returnable
December 11, 1972, appellants sought leave to file the ac-
tion described in the first sentence of this opinion.
We have concluded that the above-quoted language
of order No. 550 (note 1) should be affirmed. On the facts
presented by this record, including the failure of appel-
Jants to appeal from order No. 514 and the affirmance of
order No. 445 by this court (455 F.2d 989, supra) resulting
in the abandonment of the Pennsylvania lines, the reorgan-
ization court had the authority to protect its jurisdiction
by precluding review of the abandonment of the Pennsyl-
vania lines in any other district court. See 28 U.S.C.
§§ 1336(b) and 1398(b) ;* New Haven Inclusion Cases, 399
3. (Continued)
Commonwealth of Pennsylvania has not referred to any present or prospec-
tive program of assistance to railroads in which CNJ has been or would
be able to participate as a recipient.”
Its “ultimate findings” at page 304 included this paragraph:
“Subject to the imposition of traffic protective conditions and employee
protective conditions set forth in detail in the ‘Conclusions’ sections of this
report, we find in Finance Docket No. 26659 and Finance Docket No.
26659 (Sub-Nos. 1, 2, 3, 5, 9, 10, 11, 12, 14, 15, 21, and 28), that the
present and future public convenience and necessity permit abandonment
and abandonment of operation by Central Railroad Company of New
Jersey and by certain subsidiary companies, all designated hereinbefore
and individually identified in title pages of the certificate and order herein,
and in greater detail in appendix A, attached to the report.”
4. It is noted that on timely application to the reorganization court at this
hearing, it could have convened a three-judge court under 28 U.S.C. §§ 2321-25.
? acu Protective Committee v. ICC, 432 F.2d 268, 270-71 (3d Cir.
5. Because of the basis for the affirmance of the relevant part of Order
Io. 550 stated below, it is not necessary to determine whether the failure to
appeal from such order and the decisions of this court on March 10, 1972
(see Matter of the Central Railroad Company of New Jersey, Debtor, supra,
and related cases reported at 455 F.2d 988, 989 and 990) require affrmance of
such part of Order No. 550 under the principle of law of the case and res
judicata. See Antonioli v. Lehigh Coal and Navigation Co., 451 F.2d 1171
(3d Cir. 1971); 1B Moore’s Federal Practice, §0.404(1), pp. 402-03 (2d ed.).
6. Although the parties have not furnished a copy of order No. 410 to
this court in the appendices in this appeal, paragraphs 9 and 10 of the Petition
of LC&N (Docket 2018 in district court) recite at 24a-1 and 25a of the
trustee’s appendix, inter alia:
6a
U.S. 392, 420-422 (1970); In re Penn Central Transporta-
tion Company, 446 F.2d 1109, 1111-1112 (3d Cir. 1971);
Bondholders Protective Committee, supra at 270-71; In re
Huntingdon €& Broad Top Mt. R. R. € Coal Co., 213 F.2d
411, 416-17 (3d Cir. 1954), where Judge Biggs made the
pertinent observation at 417, ‘‘It is time that this chapter
in the history of [the railroad] is brought to a close.”’
That part of order No. 550 quoted in note 1 of this
opinion will be affirmed.
6. (Continued)
“9. On May 25, 1971, by order No. 410, this Court authorized the
Trustee to file applications ith the Interstate Commerce Commission for
permission to abandon certain lines then operated by said Trustee, which
lines included the L&S system located in Pennsylvania. By said order
No. 410, this Court reserved jurisdiction of the subject matter and directed
said Trustee to apply further to this Court for authority to abandon any
lines or operations that may be authorized to be abandoned by the Interstate
Commerce Commission.
“10. On May 26, 1971, the Trustee filed with the Interstate Commerce
Commission, pursuant to order No. 410, a petition for abandonment of the
aforesaid lines... .”
The wording and legislative history of 28 U.S.C. §§ 1336(b) and 1398(b).
as well as of §77(0) of the Bankruptcy Act (11 U.S.C. §205(0)), show that
Congress intended appeals of abandonment orders in railroad reorganization
cases to be reviewed in the context of the reorganization proceeding and not
in a court of coordinate jurisdiction. See Leonard Bros. Trucking Co. 2.
United States, 301 F. Supp. 893, 898 ( S.D. Fla. 1969): House Report 1015,
88th Cong., 2d Sess., to accompany H.R. 7308: see also JCC v. Atlantic Coast
Line R. Co., 383 U.S. 576, 579-80 (1966) ; Keller Industries, Inc. v. United
States, 449 F.2d 163, 166-67 (5th Cir. 1971); Lowiszille and Nashville R. Co.
v. Knox Homes Corp., 343 F.2d 887, 897 n.38 (5th Cir. 1965). When §77(0)
was originally added to the Railroad Reorganization Act in 1935, preliminary
drafts of the bill (H.R. 6249, later H.R. 8587, 74th Cong., Ist Sess.) containing
that section provided, inter alia:
“The conclusion of the judge that any property authorized to be abandoned
or sold hereunder, unless set aside by @ court of competent jurisdiction,
shall raise a conclusive presumption that such abandonment or sale was
justified and that such trustees were not justified in opposing same.”
{Emphasis supplied.]
The above-quoted language was omitted from the bill adopting §77(0) as
finally passed. Sec House Report 1283, 74th Cong., Ist Sess.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circust.
Ta
UNITED STATES COURT OF APPEALS
For the Third Circuit
No. 73-1110
In the Matter of
THE CENTRAL RAILROAD COMPANY OF NEW JERSEY.
Debtor
COMMONWEALTH OF PENNSYLVANIA and
PENNSYLVANIA PUBLIC UTILITY COMMISSION,
Appellants
(D.C. No. B-401-67 In Bankruptcy)
ON APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JUDGMENT
This cause came on to be heard on the record from the
United States District Court for the District of New Jersey
and was argued by counsel, and later reargued.
On consideration whereof, it is now here ordered and
adjudged by this Court that that part of order No. 550 of
the said District Court which is referred to in the opinion
of this Court and quoted in note | of said opinion, filed
December 20, 1972 be and the same is hereby affirmed.
Costs taxed against appellants.
ATTEST:
/s) Thomas F. Quinn
Clerk
September 20, 1973
8a
UNITED STATES COURT OF APPEALS
For the Third Circuit
No. 73-1110
In the Matter of
THE CENTRAL RAILROAD COMPANY OF NEW JERSEY,
Debtor
COMMONWEALTH OF PENNSYLVANIA and
PENNSYLVANIA PUBLIC UTILITY COMMISSION,
Appellants
SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, and VAN JUSEN, ALDIS-
ERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and
GARTH, Circuit Judges
The petition for rehearing filed by appellants in the
above entitled case having been submitted to the judges
who participated in the decision of this court and to
all the other available circuit judges of the circuit in
regular active service, and no judge who concurred in the
decision having asked for rehearing, and a majority of the
circuit judges of the circuit in regular active service not
having voted for rehearing by the court in banc, the peti-
tion for rehearing is denied.
By the Court,
/s/ Van Dusen
Judge
Dated: November 5, 1973
9a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
In the Matter of
THE CENTRAL RAILROAD ) In Proceedings for the
COMPANY OF NEW JERSEY, ) Reorganization of a Railroad
Debtor. ) No. B 401-67
ORDER NO. 550
ORDER DENYING APPLICATION FOR LEAVE TO
FILE AN ACTION IN THE UNITED STATES DIS-
TRICT COURT FOR THE MIDDLE DISTRICT OF
PENNSYLVANIA AND GRANTING OTHER RELIEF.
This matter having been opened to the Court on peti-
tion of the attorneys for the Commonwealth of Pennsyl-
vania and the Pennsylvania Public Utility Commission as
amended orally at the hearing for (a) leave, pursuant to
Order No. 445 of this Court, to file an action against the
United States of America in the United States District
Court for the Middle District of Pennsylvania to judicially
review certain orders of the Interstate Commerce Commis-
sion in its Finance Docket No. 26659 and in its Investiga-
tion and Suspension Docket No. 8667 and (b) for certain
other relief; and the matter having come on for hearing
which was duly noticed; and the Court having considered
the papers filed and arguments made; and all parties in
interest having been heard or having been given the op-
portunity to be heard: and good cause appearing therefor:
IT IS, on this 20th day of December, 1972.
ORDERED that the petition for leave to file an action
against the United States of America in the United States
District Court for the Middle District of Pennsylvania to
10a
judicially review certain orders of the Interstate Commerce
Commission in Finance Docket No. 26659 and in Investi-
gation and Suspension Docket No. 8667 is denied; and
it is
FURTHER ORDERED that petetioner is granted leave
to dismiss its action institited September 24, 1972 in the
United States District Court for the Middle District of
Pennsylvania bearing Docket No. Civil 71-416; and it is
FURTHER ORDERED that, upon petitioner’s request,
the appeal of petitioner from Order No. 467 of this Re-
organization Court is dismissed.
/s/ Anthony T. Augelli
§.J.U.S.D.C.
lla
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 73-1517
In the Matter of
THE CENTRAL RAILROAD COMPANY OF NEW JERSEY,
Debtor
COMMONWEALTH OF PENNSYLVANIA and
PENNSYLVANIA PUBLIC UTILITY COMMISSION,
Appellants
On Appeal from the United States District
Court for the District of New Jersey
D. C. No. B-401-67 in Bankruptcy
Argued January 9, 1974
Before: ADAMS, HUNTER and WEIS, Circuit Judges
JUDGMENT ORDER
After considering the appellants’ contentions that the
district court erred in refusing to consider appellants’ ap-
peal of an order of the Interstate Commerce Commission
because such order was final and the time for appeal had
expired, it is is
ADJUDGED AND ORDERED that the judgment of the
district court be and is hereby affirmed. See In the Matter
of the Central Railroad Company of New Jersey, No. 73-
1110 (3d Cir. Sept. 20, 1973).
Costs taxed against appellants.
BY THE COURT,
/s/ Arlin M. Adams
DATED: January 18, 1974 Circuit Judge
12a
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Chambers of 305 United States Court House
ANTHONY T. AUGELLI Newark, N. J. 07101
Sr. Judge
April 4, 1973
Charles Danzig, Esq.
Riker, Danzig, Scherer & Brown, Esqs.
744 Broad Street
Newark, New Jersey 07102
Stanley Weiss, Esq.
Carpenter, Bennett & Morriseey, Esqs.
744 Broad Street
Newark, New Jersey 07102
LETTER OPINION
The Central Railroad Company of New Jersey,
Debtor — Docket No. B. 401-67
Re: Application of The Lehigh Coal & Navigation
Company for payment of money under Order No. 441.
Gentlemen:
Reference is made to the transcript of the hearing before
this Court on December 11, 1972, and the exhibits marked
in evidence at said hearing.
At issue is the finality of an order of the Interstate Com-
merce Commission (hereinafter ICC) bearing service date of
June 2, 1972, which authorized the abandonment of the
Debtor’s railroad operation in that State of the Lehigh &
Susquehanna lines (hereinafter L & S system) under a lease
arrangement with the Lehigh Coal & Navigation Company
(hereinafter LC&N).
13a
This issue emerged as a result of a petition filed with the
Court by LC&N, in which it seeks to compel the Trustee
of the Debtor to pay LC&N the sum of $500,000.00, in
cash, as an administration expense, under the terms of a
settlement agreement entered into between the Debtor’s
Trustee and LC&N on November 17, 1971, which agree-
ment was approved by this Court’s Order No. 441. A con-
dition precedent to the Trustee’s obligation to pay LC&N
$500,000.00 was the abandonment of the L & S system
by the Debtor and the finality of the ICC order permiting
abandonment of that operation.
The Trustee is willing to discharge his obligations under
the settlement agreement of November 17, 1971, provided
the ICC order of June 2, 1972, is a final order. The final-
ity of that order was challenged in a joint petition filed by
the Commonwealth of Pennsylvania and the Pennsylvania
Public Utility Commission (hereinafter collectively Pennsyl-
vania). At the hearing of December 11, 1972, Pennsylvania
applied for leave to file a three-judge court action in the
Middle District of Pennsylvania to review the ICC order of
June 2, 1972, which authorized abandonment of the Debt-
or’s Pennsylvania operations. The application was denied
by this Court’s Order No. 550.
The abandonment of the operation of the L & S sys-
stem in Pennsylvania by the Debtor was effected pursuant
to Section 77(0) of the Bankruptcy Act. After hearing,
this Court, by Order No. 514 entered on July 5, 1972,
authorized the abandonments granted by the ICC order of
June 2, 1972. On July 3, 1972, Pennsyvlania filed with
the ICC a petition for reconsideration of the abandonment
orders involving Debtor’s Pennsylvania operations, which
petition was denied in September, 1972. No appeal was
14a
taken from this Court’s Order No. 514, notwithstanding
that any order made by a judge under Section 77(0) “shall
be a final order for purposes of appeal.”
The time to appeal has long since expired and Pennsy|-
vania should not now be heard to complain about the ICC
order of June 2, 1972, or of this Court’s Order No. 514,
entered July 5, 1972, which authorized the abandonment
granted by the ICC of the Debtor’s operation of the L & S
system in Pennsylvania. No application was made to have
this Court stay its hand pending a decision by the ICC on
the petition for reconsideration filed by Pennsylvania. In
any event, and as previously noted, said petition for re-
consideration was denied.
Under the circumstances, this Court finds that the condi-
tions precedent set forth in the settlement agreement of
November 17, 1971, have been fully met: that there is
finality to the ICC orders and the orders of this Court re-
garding the abandonment of the Debtor’s operations in
Pennsylvania; and that the Trustee should make suitable
arrangement s, pursuant to the terms of the agreement, to
pay LC&N the sum of $500,000.00 in full settlement of
all claims arising out of the operation of the L & S sys-
tem in Pennsylvania by the Debtor.
Counsel for the Trustee will please submit an appropriate
order on notice to all parties concerned.
Yours very truly,
/s/ Anthony T. Augelli
15a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
In the Matter of )
In Proceedings for the
THE CENTRAL RAIL- ) Reorganization of a Railroad
ROAD COMPANY )
OF NEW JERSEY. ) No. B 401-67
Debtor. )
ORDER NO. 583
ORDER TO CONSUMMATE SETTLEMENT WITH
THE LEHIGH COAL & NAVIGATION COMPANY
This matter having been opened to the Court by appli-
cation of The ‘Lehigh Coal & Navigation Company for pay-
ment of monies due under Order No. 441, the matter hav-
ing come on for hearing on December 11, 1972, which
was duly noticed and all parties in interest having been
heard or having been given an opportunity to be heard.
and the Court having considered all papers filed in con-
nection therewith and all arguments of counsel and hav-
ing decided the application by a letter opinion dated April
4, 1973, and good cause appearing therefor,
IT IS, on this 15th day of May, 1973,
ORDERED that:
(1) The Trustee be and is hereby directed to fully con-
summate the settlement embodied in the agreement author-
ized by Order No. 441, including the payment oi $500.000
to The Lehigh Coal & Navigation Company:
(2) Said payment may be made by the Trustee borrow-
ing such funds for a period, which may be less than but
shall not exceed 4 years, from monies held in a special
account pursuant to Order No. 157, upon terms to be
fixed by further order of this Court; and
16a
(3) The Trustee, when paying said $500,000 to The
Lehigh Coal & Navigation Company, is directed to make
suitable arrangements to protect the interests of this estate
in the event the aforesaid direction to consummate the
settlement, including the payment of $500,000 set forth
in Paragraph 1 hereof, is reversed upon any appeal from
this Order.
/s/ Anthony T. Augelli
S.U.S.D.J.
17a
APPENDIX C SERVICE DATE
SEPTEMBER 11, 1972
ORDER
At a General Session of the INTERSTATE COMMERCE COMMISSION, he.d
at its office in Washington, D. C., on the 23rd day of
August, 1972. ;
Finance Docket No. 26659
R. D. TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO.
OF NEW JERSEY -- ABANDONMENT OF OPERATION BETWEEN
PHILLIPSBURG, N. J. AND HUDSON, PA,
Finance Docket No. 26659 (Sub-No. 1)
.R. D. TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO,
OF NEW JERSEY -- ABANDONMENT OP OPERATION
MINSI TRAIL BRANCH IN LEHIGH COUNTY, PA,
Pinance Docket No, 26659 (Sub-No. 2)
R. D, TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO, OF
NEW JERSEY -- ABANDONMENT OF OPERATION NESQUEHONING
VALLEY BRANCH IN CARBON COUNTY, PA,
Pinance Docket No. 26659 (Sub-No. 3)
R, D. TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO, OF
NEW JERSEY -- ABANDONMENT OF OPERATION NANTICOKE
BRANCH IN LUZERNE COUNTY, PA,
Finance Docket No. 26659 (Sub-No. 5)
R, D, TIMPANY, TRUSTEE OF THe CENTRAL RAILROAD CO, OF
NEW JERSEY -- ABANDONMENT OF OPERATION BUTTONWOOD BRANCH
LUZERNE COUNTY, PA.
Finance Docket No. 26659 (Sub-No. 9)
R, D. TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO, OF
NEW JERSEY -- ABANDONMENT SETWEEN MINOOKA
JUNCTION AND SCRANTON, PA,
Pinance Docket No. 26659 (Sub-No, 10)
R, D. TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO, OF -
NEW JERSEY AND THE CENTRAL RAILROAD CO, OF PENNSYLVANIA --
ABANDONMENT OF OPERATION EASTON & WESTERN BRANCH IN
NORTHAMPTON COUNTY, PA.
Finance Docket No, 26659 (Sub-No. 11)
R. D, TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO, OF
NEW JERSEY AND THE ALLINTCWN TERMINAL RAILROAD CCMPANY --
ABANDONMENT OF OPERAT ION ALLENTOWN, PA,
18a
Finance Doccet No. 26659 et al.
Finance Docket No. 26659 (Sub-No. 12)
R. D. TIMPANY, TPUSTEE OF THE CENTRAL RAILROAD CO. OF
NEW JERSEY -- AEALDONMENT OF CFERATION BSTWEEN
HUDSON-UNION JUNCTION AND MLNOOKA JUNCTION, PA.
Finance Decxet No. 26659 (Sub-No. 14)
R. D. TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO, OF
NEW JERSEY -- ABANDONiiENT OF OPIRATION BETWEEN LEHICGHTON
AND PACKERTON, PA., AND BETWEEN HETCHEL AND FRASER, PA.
Pinance Docket No. 26659 (Sub-No. 15)
R. D. TIMPANY, TRUSTEE OF THE COYTRAL RAILROAD CO, OF
NEW JERSEY AND THE LEYIGH Al'D NEW ENGLAND RY. COMPANY <=
ABANDONMENT OF OPERATIONS BETWEEN BETHLEHE AND UHLERS, PA.,
. AND BETWEEN HAUTO AND TAMAQUA, PA.
Pinance Docket No. 26659 (Sub-No. 16)
R. D, TIMPANY, TRUSTEE OF THE CEtTRAL RAILROAD CO, OF
A NEW JERSEY -- ABANDONMENT BETWEEN
“ HAMPTON AND PHILLIPSEURGC, N. J.
Finance Docket No. 26659 (Sub-No. 17)
R. D. TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO. OF
NEW JERSEY -- ABANDONMEIT BETWEEN HIGH BRIDGE AND WHARTON,
S. ge tb
Finance Docket No. 26659 (Subd-No. 18)
R, D. TIMSANY, TRUSTEE OF THE CENTRAL RAILROAD CO. OF
NEW JERSEY -- ABANDONMENT BETWEEN ROYCE AND FLEMINGTON,
> N. J.
Finance Deciet Ne. 26659 (Sub-No. 19)
R, D. TIMPANY, TRUSTEES OF THE CENTRAL PAILROAD co, OF
NEW JERSEY -- ABANDONMENT BETWEEN MATAWAN AND FREEHOLD,
N. J.
Pinance Rocket No. 26659 (Sub-No. 21)
R,. D. TIMPANY, TRUSTEE CF THE CINTRAL RATLROAD CO. OF
NEW JERSEY -- ABANDONMENT BETWEEN KEYPORT AND
ATLANTIC HIGHLANDS, W. J.
Pinance Docket No. 276659 (Sub-No. 23)
R. D. TIMPANY, TRUSTED OF TYE CENTRAL RAILROAD CO, CF
NOW JERSEY -- ABANDONMENT BETWEEN EAST LONG BRANCH AND
BRANCHPORT. N. J.
19a
Finance Dockct No. 26659 (Sub-No. 26)
Rk. D, TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO. OF
NEW JERSEY -- ABANDONMENT BETWEEN RARITAN AND HAMPTON,
, N, J.
Finance Docket No. 26659 (Sub-No. 27)
R. D. TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO, OF
NEW JERSEY AND THE DOVER AND ROCKAWAY RAILROAD --
ABANDONMENT BETWEEN WHARTON AND ROCKAWAY, N, J.
Finance Docket No. 26659 (Sub-No. 28)
R. D, TIMPANY, TRUSTEE OF THE CENTRAL RAILROAD CO, OF
NEW JERSEY AND THE WHARTON AND NORTHERN RAILROAD --
ABANDONMENT BETWEEN MORRIS COUNTY JUNCTION AND
GREEN POND JUNCTION, N, J.
Finance Docket No. 26773
JOHN F, NASH AND ROBERT C. HALDEMAN, TRUSTEES
LEHIGH VALLEY RAILROAD COMPANY -- OPERATION BETWEEN
EASTON AND SCRANTON, PA,
Finance Docket No. 26781
READING COMPANY -- OPERATION BETWEEN ALLENTOWN, PA.,
AND PHILLIPSBURG, N, J.
Upon consideration of the record in the above-entitled proceedings, the report and
certificate and order of the Commission, decided May 26, 1972, and the petitions for
reconsideration filed July 3, 1972, by the Railway Labor Executives’ Association,
and jointly by the Commonwealth of Pennsylvania, the Pennsylvania Public Utility
Commission, and the City of Philadelphia, and those filed July 5, 1972, by the
United Transportation Union and by the Erie Lackawanna Railway Company, the
replies thereto filed July 24, 1972, by R. D. Timpany, Trustee of the property of
the Central Railroad Company of New Jersey, and jointly by the Asbury Graphite
Mills, Inc., Grief Bros., Corporation, Wedco, lnc., and Hunterdon County, N. J.,
of the reply filed July 25, 1972, by the Trustees of the Lehigh Valley Railroad
Company; and of the telegram filed July 20, 1972, by the Trustees of the Lehigh
Valley Railroad Company; and
It appearing, That the petitions for reconsideration set forth no material
facts or arguments in addition to those previously considered in the procecdings; that the
findings in the report and certificate and order of May 26, 1972, re adequately supported
by the record; that the conditions which were necessary for our approval of the
transaction were imposed upon the Central Railroad of New Jersey and the Lehigh
Valley Railroad Company, and not on the Erie Lackawanna as statcd in the said
telegram; that there has becn presented no error of fact or law with respect to the
matters complained of by petitioners; and, that no showing has been made warranting
reconsideration:
It is ordered, That said petitions be, and they are hereby,
denied.
By the Commission.
JOSEPH M, HARRINGTON
Acting Secretary
(SEAL)
20a
SERVICE DATE
SePTaMBER 11, 1972
ORDER
At a General Session of the INTERSTATE COMMERCE COMMISSION, held
at its office in Washington, D. C., on the 23rd day of August, 1972.
INVESTIGATION AND SUSPENSION DOCKET NO. 8667
ROUTING VIA OAK ISLAND JCT,, NEW JERSEY
INVESTIGATION AND SUSPENSION DOCKET NO. 8667 (SUB-NO. 1)
ROUTING VIA LAKE JCT., N. J.
INVESTIGATION AND SUSPENSION DOCKET NO. 8667 (SUB-NO. 2)
ROUTING VIA LAKE JCT., N. J.
INVESTIGATION AND SUSPENSION DOCKET NO. 8667 (SUB-NO. 3)
ROUTING VIA BOUND BROOK JCT,, NEW JERSEY
INVESTIGATION AND SUSPENSION DOCKET NO, 8667 (SUB-NU. 4)
. ROUTING VIA LAKE JCT., N. J.
INVESTIGATION AND SUSPENSION DOCKET NO, 8667 (SUB-NO. 5)
ROUTING VIA LAKE JCT, N, J.
Upoa consideration of the record in the above-entitled proceedings, the
report and order.of the Commission, decided May 26, 1972, and the petitions for
reconsideration filed July 3, 1972, by the Railway Labor Executives’ Association,
and jointly by the Commonwealth of Pennsylvania, the Pennsylvania Public Utility
Commission, and the City of Philadelphia, and those tiled July 5, 1972, by the
United Transportation Union and by the Erie Lackawanna Railway Company, the
replies thereto filed July 24, 1972, by R. D. Timpany, Trustee of the property of
the Central Railroad Compuny ol New Jersey, and jointlv by the Asbury Graphite
Mills, inc., Grief Bros., Corporation, Wedco, iInc., 1nd Hunterdon County, N. J.,
of the reply filed July 25, 1972, by the Trostees of the Lehigh Valley Railroad
Company; and of the telegram filed July 20, 1972, by the Trustees of the Lehigh
Valley Railroad Company; and
It appearing, That the petitions for reconsideration set forth no material
facts or arguments in addition to those previously considered in the proceedings;
that the findings in the report and order of May 26, 1972, are adequately supporicd
by the record; that the conditions which were necessary for our approval of the
transaction were imposed upon the Central Railroad of New Jersey and the Lehigh
Valley Railroad Company, and not on the Eric Lackawanna as stated in the said
telegram; that there has tx cn presented no error of Lact or law with respect to
the maticrs complained of by petitioners; and, that no showing has been made
warranting reconsideration:
It is ordered, That said petitions be, and they are hereby, denied.
By the Commission.
JOSEPH M. HARRINGTON
GEAL) Acting Secretary
2la
Title 28.—Chapter , U. S. Code
Sec. 1336. [As codified June 25, 1948, August 30, 1964.]
[28 U.S.C. § 1336.] Interstate Commerce Commission’s
ORDERS
(a) Except as otherwise provided by Act of Congress,
the district courts shall have jurisdiction of any civil action
to enforce, enjoin, set aside, annual or suspend, in whole
or in part, any order of the Interstate Commerce Commis-
sion.
(b) When a district court or the Court of Claims refers
a question or issue to the Interstate Commerce Commission
for determination, the court which referred the question or
issue shall have exclusive jurisdiction of a civil action to
enforce, enjoin, set aside, annul, or suspend, in whole or
in part, any order of the Interstate Commerce Commission
arising out of such referral.
(c) Any action brought under subsection (b) of this
section shall be filed within 90 days from the date that
the order of the Interstate Commerce Commission becomes
final.
Title 28.—Chapter 87, U. S. Code
Sec. 1398. [As codified June 25, 1948, August 30, 1964.]
[28 U.S.C. § 1398.] Interstate Commerce Commission’s
ORDERS
(a) Except as otherwise provided by law, any civil action
to enforce, suspend or set aside in whole or in part an
order of the Interstate Commerce Commission shall be
brought only in the judicial district wherein is the resi-
dence or principal office of any of the parties bringing
such action.
22a
Sec. 2325. [Codified June 25, 1948.] [28 U.S.C. § 2325.]
INJUNCTION; THREE-JUDGE COURT REQUIRED
An interlocutory or permanent injunction restraining the
enforcement, operation or execution, in whole or in part,
of any order of the Interstate Commerce Commission shall
not be granted unless the application therefor is heard and
determined by a district court of three judges under sec-
tion 2284 of this title.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.