W. Davis Graham, Kittanning, for appellant.
William J. Grove, Assistant Counsel, Lloyd Benjamin, Assistant Counsel, Charles E. Thomas, Counsel, Harrisburg, for intervening appellees.
J. Leonard Smith, Pittsburgh, Edward A. Kaier, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Dithrich, Ross, Arnold and Fine, JJ.
[ 166 Pa. Super. Page 175]
In their complaints before the Pennsylvania Utility Commission the present appellants attacked established freight rates on artificially bonded molding sand when shipped by rail in open-top cars from River Valley and from Cheswick to Breckenridge, West Homestead, Neville Island, Sharpsville and Penn, all in western Pennsylvania within 100 miles of Pittsburgh. Two of the appellants are producers and shippers of artificially bonded sand; the others are their customers and users of the processed sand. Six railroads serving the area have intervened in the proceedings as appellees. The artificially bonded sand, here involved, is known as Pittsburgh Loam Sand, and is a natural mixture of sand and gravel of various sizes, to which 15 to 25% loam or crude clay has been added. The raw materials, sand and loam, dug by power shovels from deposits at Cheswick or River Valley, are hauled to processing plants where they are shoveled manually, in proper proportions into a crushing pan to reduce the size of the gravel content. From there the mixture is screened and conveyed into cars for shipment. The addition of the clayey loam gives the mixture plasticity and a cohesive quality necessary for use in making molds for heavy iron castings. There is another suitable molding sand which in nature contains a similar bond content, known commercially as Naturally Bonded Molding Sand.
The Interstate Commerce Commission in Industrial Sand cases, 1930, 204 I.C.C. 159, by order of October 8, 1934 as subsequently amended, had prescribed a 'basic rate' scale applicable to rail shipments of naturally bonded sand in all types of cars. The basic rate was made to apply also to ground or pulverized sand when shipped in closed cars. Lower rates under a so-called
[ 166 Pa. Super. Page 176]
'West Penn Scale' were prescribed by the order for all other types of sand when shipped in open-top cars. For our purposes we may assume that to be the extent of the order; its other provisions have no application here. Thereafter the question of the appropriate rates on molding sands did not immediately come before our Public Utility Commission, and in the meantime artificially bonded molding sand was shipped for distances up to 200 miles by the appellant-producers at common sand rates measured by the West Penn Scale.
Inasmuch as artificially bonded molding sand competed directly with sand naturally bonded, in the uses to which it was put, it became apparent that on the shorter hauls, here involved, the lower rates for the artificially processed sand unduly prejudiced shippers of naturally bonded sand who under the basic scale were obliged to pay a higher rate. To remove this inequality the Interstate Commerce Commission in 1940, at the suggestion of carrier representatives, entered a further supplemental order in the above Industrial Sand Cases, in effect bringing artificially bonded molding sand under the same basic rates applicable to naturally bonded molding sand. Consistent with the above order as amended the carriers then filed new tariffs with the Interstate Commerce Commission and also with the Pennsylvania Public Utility Commission, which became effective on May 1, 1942. The new schedules applied the same rates to both types of bonded molding sand without discrimination in both interstate and intrastate commerce. For reasons which are of no relevancy here, the rates in question were not attacked by anyone until 1946 when the present appellants, in one complaint to the Public Utility Commission requested that the prior rates of the West Penn Scale on artificially bonded sand be restored and reparations paid, and in a
[ 166 Pa. Super. Page 177]
second complaint sought to have the prescribed rates reduced below those in effect prior to May 1, 1942. After full hearing before the Commission both complaints were dismissed on February 10, 1948. We are unable to ...