July 9, 1962, or imposing any penalties, civil or criminal, for non-compliance therewith;
'(b) command and compel the Defendants, Joseph Sharfsin, P. Stephen Stahlnecker, Robert W. Anthony, William F. O'Hara and John L. Dorris, to revoke and withdraw the Order of the Commission issued July 9, 1962, and dismiss the Rule to Show Cause issued upon Plaintiff, on February 20, 1962; and
'(c) grant unto Plaintiff such other relief as equity and justice may require.'
The Motion to Dismiss is predicated on the following reasons:
1. The Court should, in its discretion as a Court in equity and for the reasons of comity, decline to exercise its jurisdiction invoked by Railroad.
2. The Order of the P.U.C, unappealed from is entitled to full faith and credit under Article IV, Section 1 of the United States Constitution; Act of June 25, 1948, 62 Stat. 947, 28 U.S.C. § 1738 and 28 U.S.C. § 1739.
3. In the event that the doctrine of 'full faith and credit' is held to be inapplicable, the Complaint should be dismissed on the ground of res judicata.
In support of their first reason (comity) defendants state:
(a) That on February 20, 1962, P.U.C. issued upon Railroad a Rule to Show Cause why it should not comply with the P.U.C. Order of August 7, 1961, requiring Railroad to maintain service between the City of Harrisburg and the Pennsylvania-Maryland boundary line. On February 27, 1962, Railroad answered the Rule and raised the question of supremacy of the Federal Transportation Act of 1958 concerning Section 13a(1) of that Act, 49 U.S.C. § 13a(1). On April 6, 1962, a hearing was held at which Railroad appeared through its counsel and stipulated to the facts in controversy, again raising the question of Federal supremacy under the said Federal Transportation Act of 1958. On July 9, 1962, P.U.C. issued its Order, served upon the Railroad on July 11, 1962, rejecting the arguments of Railroad.
(b) Railroad was properly before P.U.C. concerning the question of discontinuance of intrastate transportation, in fact Railroad had invoked the jurisdiction of P.U.C. by filing its application before P.U.C. on November 29, 1960.
(c) Under the Act of May 28, 1937, P.L. 1053, Section 1101, 66 P.S. § 1431, an aggrieved party must appeal an Order of P.U.C. to the Superior Court of Pennsylvania within thirty days after service of the Order.
(d) Under the Public Utility Law, to which the Railroad was subject in its litigation before the P.U.C., the Railroad was required to file an appeal to the Superior Court within thirty days from the service of the P.U.C. Order of July 9, 1962. Had this been done, the further appellate procedure before the Supreme Court of Pennsylvania and ultimately before the Supreme Court of the United States would have been available.
(e) The regulation of intrastate transportation between points in Pennsylvania is based upon predominantly local factors, and the federal questions raised by the Railroad were considered fully by P.U.C. in its Order of July 9, 1962, and had proper appeal been taken undoubtedly would have been considered fully by both the State Superior Court, State Supreme Court and United States Supreme Court.
In support of their second reason (full faith and credit), defendants state:
(a) The federal questions raised by the Railroad were fully discussed and overruled by the P.U.C. Railroad elected not to appeal the Order of P.U.C. of July 9, 1962, but instead elected to permit the Order of P.U.C. to become final.
(b) Under the provisions of Section 1112 of the Public Utility Law (66 P.S. § 1442) the Order of P.U.C. is conclusive upon the Railroad, admittedly a party to the proceeding and subject to the jurisdiction of P.U.C., which the Railroad had initially invoked. Under the law of Pennsylvania, Railroad is not at liberty to question the validity of the Order of P.U.C. from which no appeal was taken. By federal statute, 28 U.S.C. § 1738, all courts in the United States must give to such an order the same faith and credit as such order would have in the Courts of Pennsylvania.
(c) Because the effect of Railroad's failure to appeal Order of P.U.C. of July 9, 1962 is res judicata of the matters properly before the P.U.C., Complaint should be dismissed as an attempt to relitigate the issues which were litigated to a finality in Pennsylvania.
In support of their third reason (res judicata) defendants state:
In the event the Court determines that the full faith and credit clause does not apply to the orders and decrees of the P.U.C., nonetheless the Order of P.U.C. being unappealed from and involving same subject matter, same parties, same issues and same interests must be held to be res judicata.
A time schedule is set forth in the margin setting forth in chronological order the various steps taken in connection with the efforts of Railroad to discontinue the operation of two of its trains engaged in an interstate service between Harrisburg, Pennsylvania and Hagerstown, Maryland.
From this schedule it will be noted that Railroad initially sought its relief from P.U.C. That upon failing here and without appealing, it sought relief under the Interstate Commerce Act. Then followed a series of conflicting imponderables: on the one hand, definitive orders of the P.U.C.; on the other hand, failure to enter upon an investigation in accordance with the provisions of the Interstate Commerce Act, which failure in and of itself, under the terms of the said Act, vested certain rights in Railroad. Availing itself of the rights thus acquired under the Federal statute, Railroad discontinued the complete interstate operation of the two trains only to find itself faced with the Order of the State regulatory body to resume and continue the intrastate movement of the two trains. Failure to comply with the latter Order automatically subjects Railroad to the sanctions, civil and criminal, of the pertinent Pennsylvania statute, to wit: Act of May 28, 1937, P.L. 1053, art. XIII, §§ 1301 and 1302, 66 P.S. §§ 1491 and 1492. Here again with respect to P.U.C. Order of July 9, 1962 (to resume and continue operations), Railroad failed to appeal as it had previously failed to appeal the P.U.C. Memorandum of August 7, 1961 denying Railroad's original application to discontinue.
From the foregoing it cannot be said at this time that Railroad in its Complaint has not set forth a cause of action which calls for relief, especially in the light of the Opinion of the Three Judge Court in this District in the case of Sludden, et al. v. United States of America, et al., supra, which Opinion was written by the writer of the instant Opinion and of which this Court presently takes judicial notice.
I do not feel that the various issues raised by defendants in their Motion to Dismiss, to wit: comity, full faith and credit, and res judicata, are matters which call for consideration, much less extended discussion, in the present posture of the case, to wit: on the Motion to Dismiss.
Accordingly, defendants' Motion to Dismiss will be denied.