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W. J. DILLNER TRANSFER CO. v. MCANDREW

July 9, 1963

W. J. DILLNER TRANSFER COMPANY, Plaintiff,
v.
Arthur Richard McANDREW, Jr., Defendant



The opinion of the court was delivered by: MARSH

In its 'Complaint For Declaratory Judgment', plaintiff requests this court to 'adjudge the common meaning and connotation' of the terminology in the Certificate of Public Convenience and Necessity granted plaintiff by the Interstate Commerce Commission on September 14, 1942. The matter is now before the court on defendant's 'Motion to Dismiss With Prejudice', which alleges as grounds: (1) res adjudicata, (2) failure to join the Interstate Commerce Commission or the United States as an indispensable party, and (3) failure to allege a justiciable controversy in accordance with the Declaratory Judgments Act, 28 U.S.C.A. 2201 and 2202. *fn1"

It is our opinion that the motion to dismiss should be granted.

 Plaintiff is a motor carrier incorporated under the laws of Pennsylvania and has its office in this judicial district. The defendant is employed by the Bureau of Motor Carriers, a division of the Interstate Commerce Commission, as a supervisor of the regional district in which plaintiff's office is located.

 In its complaint plaintiff alleges generally that it requires a declaration of its rights under its Certificate of Public Convenience and Necessity to permit its 'financial survival'; that the defendant, to plaintiff's irreparable damage, has threatened to charge plaintiff with numerous violations of the Certificate and has threatened to and has advised 'shippers' of such adverse facts, all under the color of 'certain rules, regulations and orders' given defendant by his 'employer'; that the defendant admits to a lack of knowledge of the proper interpretation in enforcing the terms of the Certificate; and praying for adjudication of the 'common meaning and connotation' of the language in the Certificate.

 It is further alleged that the attention of defendant has been directed to the decision in Movers Conference of America v. United States, 205 F.Supp. 82 (S.D.Cal.1962), 'but defendant has refused to heed the clear admonitions of the Courts and the said Commission has now rejected and refused all attempts by Plaintiff to obtain a Declaratory Order in the light of the Movers Case.'

 It appears from the Order of the Interstate Commerce Commission, Division 1, acting as an Appellate Division, filed of record in this case, that plaintiff's prior petitions for declaratory orders were denied, and on December 4, 1962, a petition for reconsideration was also denied, inter alia, on the grounds that plaintiff's Certificate has been interpreted and that no further interpretation appeared to be warranted.

 In its motion to dismiss the defendant contends, first, that this action is in reality an attempt to relitigate issues purportedly decided in W. J. Dillner Transfer Company v. I.C.C., 193 F.Supp. 823 (W.D.Pa.1961), aff'd 368 U.S. 6, 82 S. Ct. 16, 7 L. Ed. 2d 16 (1962) and in W. J. Dillner Transfer Company v. United States of America and Interstate Commerce Commission, 214 F.Supp. 941 (W.D.Pa.1963). We will not decide the issue of res adjudicata because determination of the other issues raised by defendant are dispositive of this action; however, from the adjudications above referred to it seems that plaintiff already received from the Commission and the Courts a clear declaration of its rights under its Certificate of Public Convenience and Necessity.

 Second, the defendant contends that the court lacks jurisdiction because the plaintiff has failed to name as defendant an indispensable party to the suit, i.e., the United States or the Interstate Commerce Commission.

 We agree that the Interstate Commerce Commission is an indispensable party to the action.

 Third, the defendant contends that the court does not have jurisdiction over the subject matter because a justiciable controversy has not been presented to the court within the scope of the Declaratory Judgments Act. We also agree with this contention.

 Indispensable Party: Interstate Commerce Commission

 It is readily apparent that plaintiff's quarrel over interpretation of the Certificate's terminology is not basically with the defendant-employee, McAndrew; it is inherently with the grantor of said Certificate -- the Interstate Commerce Commission. The analogy which comes to mind is that of a disagreement between landlord and tenant over the construction of a lease, with defendant, McAndrew, Occupying a position comparable to that of a rental agent or building superintendent.

 The unreported case of Ball Brothers Trucking Company v. Childs, et al., Civil No. 2110 (N.D.Tex.1951), cited by plaintiff in support of the contrary view, is not in point. There, a temporary injunction proceeding was instituted against district supervisors of the Bureau of Motor Carriers who had the principal on-the-spot authority to enforce an Interstate Commerce Commission order prohibiting the transportation by Ball Brothers of flat steel. It was unnecessary to join the Interstate Commerce Commission proper as a defendant in order to obtain the desired relief. Williams v. Fanning, 332 U.S. 490, 68 S. Ct. 188, 92 L. Ed. 95 (1947). No such specific order has been alleged in plaintiff's complaint.

 Here, the real controversy, if any there be, involves a general interpretation of the terms of the Certificate and is necessarily between the Interstate Commerce Commission, grantor of the Certificate, and the plaintiff, grantee thereof. Since interpretation of the Certificate should be made in the first instance by the Commission upon whom Congress has placed the responsibility for action, we think it is an indispensable party to this ...


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