Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1972, No. 246, in case of George P. Baker, Richard C. Bond, Jervis Langdon, Jr., and Willard Wirtz, Trustees of the Property of Penn Central Transportation Company, Debtor, v. Ran-Per, Inc.
Michael W. Burns, with him Wilbur McCoy Otto, and Dickie, McCamey & Chilcote, for appellants.
George Shorall, with him Howard Taylor Gilfillan, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Spaeth, J.
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This is an appeal from an order denying a motion to dismiss a counterclaim for lack of jurisdiction.*fn1
Appellants are trustees of the assets of the Penn Central Transportation Company, which is at present undergoing reorganization in the United States District Court for the Eastern District of Pennsylvania. Among the assets is the Hanlin Slag Dump located along the railroad right-of-way in Washington County, Pennsylvania. In 1972, appellants initiated an action in the Court of Common Pleas of Allegheny County charging, inter alia, that appellee, Ran-Per, Inc., had breached its license to remove slag from the Hanlin Dump.*fn2 Appellee responded with a counterclaim for damages for "malicious, intentional and wrongful interference" with the license. Appellants filed a motion to dismiss on the ground that the court below had no jurisdiction to hear the counterclaim. Appellants' argument may be summarized as follows. The reorganization of the railroad
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was initiated by an order of the District Court issued on June 21, 1970, pursuant to Section 77 of the Bankruptcy Act, 11 U.S.C. § 205 (1970). Paragraph 9 of the order restrains and enjoins "[a]ll persons and all firms and corporations . . . from commencing or continuing any proceeding against the [railroad], whether for obtaining or for the enforcement of any judgment or decree or for any other purpose, provided that suits or claims for damages caused by the operation of trains, buses, or other means of transportation may be filed and prosecuted to judgment in any Court of competent jurisdiction. . . ." See 11 U.S.C. § 205(j) (1950). The counterclaim is not a claim "for damages caused by the operation of trains, buses, or other means of transportation." Therefore, it "must be prosecuted against the estate of the debtor through the procedures as established by the Federal Bankruptcy Law and the Reorganization Court sitting in the United States District Court for the Eastern District of Pennsylvania." (Appellants' Brief at 4.) The lower court rejected this argument and denied appellants' motion.
It was appellants who invoked the jurisdiction of the courts of the Commonwealth of Pennsylvania. They admit they had the authority to do so.*fn3 Moreover, they concede that they have the authority to settle and defend claims against the railroad.*fn4 Should appellee's
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counterclaim produce a judgment in its favor, the creditors of the railroad will not be harmed since payment either of the judgment*fn5 or of a set-off against the amount to which the railroad may be entitled from appellee appears to be barred.*fn6 The District Court retains jurisdiction to decide on the implementation of relief. Finally, to hear appellants' case but not appellee's "when both might easily be disposed of in one action, seems not only an uneconomic allocation of judicial resources but also an unduly harsh and useless result." Baker v. Southeastern Michigan Shippers Co-Operative Assoc., Civil No. 39090 (E.D. Mich., filed Sept. 28, 1973). Cf. In re Penn Central Transportation Co.; Petition of Lease Financing Corp., 346 F. Supp. 1337 (E.D. Pa. 1972).
For these reasons, we find that appellants have waived their right to assert that the general prohibition of paragraph 9 deprives the courts of the Commonwealth of Pennsylvania from having jurisdiction over appellee's counterclaim. Appellants, however, are still free to petition the District Court to pass specifically on the question ...