Appeal from the Order dated February 11, 1976, of the Court of Common Pleas of Northampton County, Civil Action, Law Division, at No. 236 May Term, 1971. No. 1166 October Term, 1976.
J. Edgar McDonald, New York City, with him Richard F. Stevens, Allentown, for appellants.
Richard B. Rogers, Carpentersville, with him Raymond J. DeRaymond, Easton, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Van der Voort, J., dissents.
[ 246 Pa. Super. Page 597]
This appeal is from the lower court's order granting a motion for summary judgment in favor of appellee Chemetron Corporation. It is well established that a motion for summary judgment may be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. No. 1035(b). The moving party has the burden of proving that a summary judgment is appropriate, Ammerman v. Lush, 236 Pa. Super. 231, 345 A.2d 271 (1975), and the record must be examined in a light most favorable to the non-moving party. Barker v. Brown, 236 Pa. Super. 75, 340 A.2d 566 (1975). We have determined that there is no genuine issue of material fact in this case and that the lower court properly granted appellee's motion. Therefore, we affirm.
Between July 1, 1968, and July 30, 1973, appellee shipped by rail 269 carloads of phosgene gas from La Porte, Texas, to its plant in Stockertown, Pennsylvania. Phosgene gas is an extremely dangerous poison. It was used during World War I for chemical warfare, and today it has a number of industrial purposes. Due to the dangerous nature of phosgene, the method of transporting it is strictly controlled. See 49 C.F.R. § 173.300 et seq.
In this case, the phosgene was shipped in one-ton cylinders on specially designed freight cars. The car is basically
[ 246 Pa. Super. Page 598]
an underframe consisting of fifteen cradles. Each cradle is designed to accept one cylinder, and the cylinder is secured to the underframe by a clamp. When the car reaches its destination, the fifteen full cylinders are removed and replaced with fifteen empty ones.
The railroad charges a tariff on each carload of gas shipped. The amount that a railroad may charge is controlled by schedules devised by the Interstate Commerce Commission (ICC). A tariff "embodies an analysis of the costs incurred in the transportation of a certain article and a decision as to how much should, therefore, be charged for the carriage of that article in order to produce a fair and reasonable return." United States v. Western P. R. Co., 352 U.S. 59, 66, 77 S.Ct. 161, 166, 1 L.Ed.2d 126 (1956).
For the 269 shipments by appellee of phosgene gas, the Lehigh Valley Railroad charged a total of approximately $282,191.40. This amount was determined using the "tank car" rate, which is based solely on the net weight of the gas shipped. Subsequently, appellants John F. Nash and Robert C. Haldeman, Trustees of the Lehigh Valley Railroad, determined that the "container" rate should have been charged. Under this theory, appellees should have been billed for the weight of each cylinder in addition to the weight of the gas. A total of approximately 23,100 pounds would thus have been added to the weight of each carload which would have resulted in additional charges totaling $827,051.98. Appellants have sued in assumpsit to recover that amount from appellee.
The issue in dispute may be conceptualized as whether the cylinders are part of the car, and therefore should not be charged to the shipper, or whether the cylinders are containers, regarded as part of the shipper's product. Appellant contends that the lower court erred in failing to defer this question, under the doctrine of primary jurisdiction, to the ...