The opinion of the court was delivered by: FOLLMER
This is a motion by defendants to dismiss the above stated action.
Plaintiff is The Pennsylvania Railroad Company (hereinafter referred to as 'Railroad'), a Pennsylvania corporation with its principal office in the City of Philadelphia, Pennsylvania. The defendants are Joseph Sharfsin, P. Stephen Stahlnecker, Robert W. Anthony, William F. O'Hara, and John L. Dorris, individually and as Commissioners of the Pennsylvania Public Utility Commission (hereinafter referred to as 'P.U.C.').
The Complaint sets forth, inter alia:
1. That the suit arose under the Act of Congress approved June 25, 1948, c. 646, 62 Stat. 931, 28 U.S.C. § 1337, and the Act of Congress regulating commerce approved August 12, 1958, Pub.L. 85-625, § 5, 72 Stat. 571, otherwise known as the Transportation Act of 1958 and as Section 13a(1) of the Interstate Commerce Act, Part I, 49 U.S.C. § 13a(1);
2. that Railroad, prior to February 25, 1962, operated two passenger trains, in interstate commerce, designated Nos. 638 and 645, between the cities of Harrisburg, Pennsylvania and Hagerstown, Maryland;
3. that Railroad, on November 28, 1960, filed an application with the P.U.C. at Application Docket 87818 seeking permission to discontinue, within the Commonwealth of Pennsylvania, the operation of the aforesaid passenger trains;
4. that the P.U.C., after public hearings, denied Railroad's application by its Order of August 7, 1961. No appeal was taken from that Order;
6. that the Interstate Commerce Commission, on February 12, 1962, released a Notice of its conclusion not to enter upon an investigation of the proposed discontinuance of Railroad's passenger trains No. 638 and No. 645;
7. that the P.U.C., on February 20, 1962, issued upon Railroad a Rule to Show Cause why Railroad should not comply with the Order of the Commission of August 7, 1961;
8. that Railroad, on February 25, 1962, discontinued the operation of passenger trains No. 638 and No. 645 pursuant to its Notice of January 25, 1962, and under authority of Section 13a(1) of the Interstate Commerce Act aforesaid;
9. that the P.U.C., after argument on the Rule to Show Cause issued upon Railroad, by its Order of July 9, 1962, made the Rule to Show Cause absolute and ordered Railroad to restore and continue to maintain service as required by the Order of the P.U.C. of August 7, 1961. The said Order of July 9, 1962, was unlawful and issued in defiance of Section 13a(1) of the Transportation Act of 1958 and of Railroad's rights thereunder. The P.U.C. purported to justify its said Order on the ground that Section 13a(1) aforesaid was unconstitutional;
10. that the Order of the P.U.C. requiring Railroad to restore to service passenger trains No. 638 and No. 645 was beyond the jurisdiction of the Commission. By virtue of Section 13a(1) of the Transportation Act of 1958, supra, and the action of the Railroad pursuant thereto, jurisdiction over the said trains No. 638 and No. 645 was vested solely and exclusively in the Interstate Commerce Commission. Furthermore, the P.U.C. has no power or authority to declare unconstitutional or otherwise refuse to be bound by an Act of Congress regulating Interstate commerce;
11. that Railroad has acted lawfully, under authority of Section 13a(1) aforesaid, in discontinuing the operation of its passenger trains No. 638 and No. 645 and in omitting to restore said trains to service. Although Railroad believes and avers that the action of the P.U.C. and its Order of July 9, 1962 is unlawful, nevertheless, Railroad would be subject, to the imposition of penalties under authority of the Act of Assembly approved May 28, 1937, P.L. 1053, Article XIII, Section 1301, 66 P.S. § 1491, at the rate of $ 50.00 for each day in which it fails to obey the aforesaid Order, if the said Order of the P.U.C. is lawful. Railroad, its officers and employees, would further be subject, under authority of the Act of Assembly approved May 28, 1937, P.L. 1053, Article XIII, Section 1302, ...