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BOROUGH OF MOOSIC v. UNITED STATES

July 13, 1967

BOROUGH OF MOOSIC, Plaintiff, Milton J. Shapp and City of Scranton, Intervening Plaintiffs,
v.
UNITED STATES of America, Defendant, and Interstate Commerce Commission, New York Central Railroad Company, and Pennsylvania Railroad Company, Intervening Defendants



Per Curiam

This action seeks to enjoin permanently, set aside and annul these June 9, 1967 (served June 12) Orders of the Interstate Commerce Commission under 28 U.S.C. ยง 1336:

 
A. Pennsylvania Railroad Company-New York Central Company Merger 21989-90 (hereinafter I.C.C. Penn-Central merger proceeding) - see Appendix 1 to Complaint.
 
B. Norfolk & Western Railway Co. and New York, Chicago & St. Louis Railroad Co. - Finance Docket 21510 et al. (hereinafter I.C.C.N & W-Nickel Plate merger proceeding) - see Appendix 2 to the Complaint. *fn1"

 This case is now before the court on motions of defendant and intervening defendants for a stay of all proceedings. The background of the I.C.C. proceedings and court cases leading up to the application for a stay of proceedings is summarized in Erie Lackawanna Railroad Co. v. United States, 259 F. Supp. 964 (S.D.N.Y.1966); Baltimore & O.R. Co. v. United States, 386 U.S. 372, 87 S. Ct. 1100, 18 L. Ed. 2d 159 (1967); Erie-Lackawanna Railroad Company v. United States of America et al., (S.D.N.Y. 66 Civ. 2860, 2903 & 2914, Memorandum Order of 7/3/67). *fn2" On the morning of July 7, 1967, the I.C.C. postponed the effective date of the inclusion order covering the Erie-Lackawanna Railroad Company (E-L), Delaware and Hudson Railroad Company (D & H), and the Boston and Maine Corporation (B & M) in the I.C.C.N. & W-Nickel Plate merger proceeding pending its decision on petitions for reconsideration of the June inclusion order in the N & W-Nickel Plate merger proceedings by B & M and D & H.

 These mergers have been considered by the I.C.C. as incident to what the Supreme Court of the United States has described as "the desire of the Congress that the industry proceed toward an integrated national transportation system through substantial corporate simplification." County of Marin v. United States, 356 U.S. 412, 417-418, 78 S. Ct. 880, 883, 2 L. Ed. 2d 879 (1958), which was quoted with approval in Baltimore & O.R. Co. v. United States, 386 U.S. 372, 387, 87 S. Ct. 1100, 18 L. Ed. 2d 159 (1967).

 The Supreme Court of the United States has emphasized the need for expedition of all litigation challenging the Penn-Central merger, using this language in Baltimore & O.R. Co. v. United States, supra, at 392, 87 S. Ct. at 1110:

 
"The Penn-Central merger has been studied for a decade. Indeed, the parties to the merger agreed to it over five years ago and it has been under Commission consideration ever since that time. This is, of course, the more reason for expedition. We note and give weight to the estimates of the Commission that the inclusion proceedings of the three roads in the N & W should be concluded in 'a relatively short time.' Our remand should, therefore, entail only a very short delay before the Commission. If its order is attacked in court the hearing there can be expedited, as was this one, and an early determination made."

 Also, many of the issues covered by this complaint may be covered by the scheduled final hearing to be held before the New York Federal Court on September 18, 1967. In the Memorandum Order of July 3, 1967, this language appears:

 
"The Supreme Court made it clear that the issues of 'the validity of the merger, the special conditions of Appendix G, the modified order of the Commission, or the peripheral points posed by the various parties,' ibid., remained for final determination in these actions * * *. If the actions remain pending for the grant of relief which the N & W and its allies want, especially for what, as will hereafter appear, we consider relief that may go beyond the Supreme Court's mandate, they are pending for other purposes as well.
 
* * *
 
"Each plaintiff or intervening plaintiff in such actions shall file and serve on or before July 17, 1967 a supplemental complaint setting forth in what respects it objects to the order in F.D. No. 21989 as this now stands and what further relief it seeks."

 It is not clear exactly how many issues challenged by the attack made in VIII B and C (pages 10-12) of this complaint will be considered at the New York Federal Court's final hearing on September 18. However, the above-quoted language from the July 3 Memorandum Order makes it likely that most, if not all, of them will be so considered if they are raised in supplemental complaints or an intervening complaint filed by the plaintiff on or before July 17. *fn3" An application to modify the stay of proceedings in this case may be made, if appropriate, after August 8, when the supplemental complaints and briefs of the moving parties have been filed in New York Federal Court cases. Also, it is noted that the basic attack in this ...


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