William F. Zearfaus, Philadelphia, for appellant.
William J. Grove, Asst. Counsel, Lloyd S. Benjamin, Asst. Counsel, Charles E. Thomas, Counsel, for Pennsylvania Public Utility Commission, Harrisburg.
Joseph T. Owens, Pittsburgh, for intervening appellee.
Before Rhodes, P. J., and Hirt, Reno, Ross, Arnold and Gunther, JJ. Dithrich, J., absent.
[ 169 Pa. Super. Page 59]
In the original complaint filed with Pennsylvania Public Utility Commission, Pittsburgh Plate Glass Company alleged that the increased freight charges on sand which it paid to respondent, Pennsylvania Railroad Company, throughout the period from May 1, 1947, to July 19, 1948, were in excess of the lawful rates under existing tariffs, in violation of § 303 of the Pennsylvania Public Utility Law, the Act of May 28, 1937, P.L. 1053, 66 P.S. § 1143. The Glass Company accordingly sought a refund of the amounts paid by it over and above the applicable rates. The shipments involved were of sand in open-top cars from Mapleton, Silica Plant, and McVeytown in the Mapleton district to complainant's factories in Ford City and Creighton, in this State. The complaint was sustained by order of the Commission and the proceeding was set down for further hearing to determine the amount of reparations due the Pittsburgh Plate Glass Company from the respondent railroad. From this order the Pennsylvania Railroad Company appealed. In disposing of the appeal we will continue to refer to the Glass Company as the complainant.
The basic freight rates of The Pennsylvania Railroad Company appear in its Tariff 1268F, Pa. P.U.C. No. 1533. It was agreed that the effective base rate in that tariff on open-top carload shipments of sand from the three named points in the Mapleton District to Ford City and Creighton, in Pennsylvania, was $1.54 a net ton. It was also agreed that the commodity description applicable to the basic sand rate was thus
[ 169 Pa. Super. Page 60]
stated in that tariff: 'Item 5 Sand (Except Sand, Molding, bonded, (naturally or otherwise) and except Ground or Pulverized Sand), in open-top equipment, without tarpaulin or other protective covering. (See Note) Note: Will not apply on Sand processed beyond washing or screening for decolorizing, filtering or water softening'. Item 10 of the tariff dealt with shipment of sand in closed car equipment, and was applicable also to molding sand in all kinds of equipment.
The controversy arises from the fact that basic rates on sand in interstate commerce became subject to increases by orders of the Interstate Commerce Commission and these increases were made effective, concurrently on intrastate shipments, by the Public Utility Commission. The order of the Interstate Commerce Commission of December 15, 1946, in a proceeding known as Ex Parte 162, 266 I.C.C. 537 (1946), authorized an increase of 15 cents per ton on 'Gravel and Sand -- Group 350' and an increase of 20 per cent, subject to a maximum of 30 cents a ton, on 'Industrial Sand -- Group 392'. 'Basic freight rates' subject to the order of December 15, 1946 were defined by the Interstate Commerce Commission in Ex Parte 162, as 'those now in effect'. In that proceeding, Group 350 by reference was defined as 'Gravel and sand (other than glass or molding)' and 'Gravel; sand, N.O.I.B.N.' i. e., Not Otherwise Indexed By Name, and not more specifically provided for in that tariff. Group 392, subject to the order, consisted in 'Products of mines' and included 'Glass' sand and molding sand.
To enable carriers to take advantage of the increases in intrastate shipments promptly, Pennsylvania Public Utility Commission by order dated December 10, 1946, permitted Pennsylvania Railroad -- on the authority of § 308(a) of the Public Utility Law, 66 P.S. § ...