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September 18, 1972

PENN CENTRAL TRANSPORTATION COMPANY et al. COMMONWEALTH OF PENNSYLVANIA and Pennsylvania Public Utility Commission, Plaintiffs, and Cooperative Legislative Committee, Railroad Brotherhoods, State of Pennsylvania, Intervening Plaintiff, v. George P. BAKER et al., Defendants

The opinion of the court was delivered by: MUIR

Tropical Storm Agnes struck Pennsylvania in late June, 1972, and created unprecedented floods and destruction. The damage was particularly severe in the Wilkes-Barre area.

This suit by the Commonwealth of Pennsylvania and its Public Utility Commission seeks a mandatory injunction to require the Penn Central Transportation Company to restore two of its lines which were badly damaged by the storm. The branches which are the subject of this suit are the so-called Wilkes-Barre branch between Sunbury and Wilkes-Barre and the so-called Northern Central branch between York, Pennsylvania and Cockeysville, Maryland. Since Tropical Storm Agnes, Penn Central has not operated any trains on these two branches. For the reasons stated below, Plaintiffs' application for an injunction will be denied.

 The legal context of this action is found in two sections of the Interstate Commerce Act. Section 1(18) of the Act, 49 U.S.C. Section 1(18), provides in relevant part that a railroad shall not "abandon all or any portion of a line of railroad, or the operation thereof, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity permit of such abandonment." Under Section 1(20) of the Act, 49 U.S.C. Section 1(20), any abandonment contrary to the provisions of Section 1(18) "may be enjoined by any court of competent jurisdiction at the suit of any commission or regulating body of the State or States affected, or any party in interest".

 On September 1, 1972, Penn Central filed an application with the Interstate Commerce Commission (ICC) to abandon these two lines. The ICC has not decided whether to grant this application, but it has ordered Penn Central to restore service on the Wilkes-Barre branch by October 21, 1972. This order may well be modified.

 Penn Central's indefinite suspension of operation on these branches and its application for abandonment constitute abandonment of operations within the meaning of 49 U.S.C. Section 1(18). See Meyers v. Jay Street Connecting Railroad, 259 F.2d 532, 535 (2d Cir. 1958). Since the ICC has not sanctioned this abandonment, Penn Central's action is in violation of 49 U.S.C. Section 1(18), and this Court has the power to enjoin said violation. 49 U.S.C. Section 1(20).

 This power to enjoin should not, however, be lightly or automatically exercised. I find nothing in the Interstate Commerce Act which indicates that where a line of a railroad is destroyed in whole or in part by a natural catastrophe, a Court should order restoration to commence immediately regardless of the damage to or importance of the line. See Myers v. Arkansas & Ozarks Railway Corporation, 185 F.Supp. 36 (W.D.Ark.1960); Smith v. United States, 211 F.Supp. 66 (D.Conn.1962); McGrody v. Baltimore and Ohio Railroad, 217 F.Supp. 252 (E.D.Pa.1963).

 The test which this Court must apply is whether it is equitable to permit Penn Central to continue suspension of service until the ICC decides whether permanent abandonment is appropriate. The ICC has indicated that it will expedite consideration of the abandonment proceedings with respect to the two branches.

 I have considered many factors in reaching my decision:

(1) The extent of the damage to the two branches.
(2) The economic importance of each of the two branches.
(3) The pendency of the application to the ICC for leave to abandon the branches.
(4) The order of the ICC to the railroad to restore service on the Wilkes-Barre branch.
(5) The order of the ICC to use a line parallel to the Wilkes-Barre branch on a test basis.
(6) The offer of the Delaware and Hudson Railroad to contribute $ 100,000 to the Penn Central towards the restoration of the Wilkes-Barre branch.
(7) The reorganization of the Penn Central under the supervision of Judge Fullam of the U.S. District Court for the Eastern District of Pennsylvania.
(8) The abandonment of these lines as a possible factor in the reorganization of Penn Central.
(9) The $ 19,000,000 damage to Penn Central's system by Tropical Storm Agnes.
(10) The extensive economic damage to Pennsylvania communities, particularly Wilkes-Barre, ...

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