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KENNETH G. WALDO v. BESSEMER & LAKE ERIE RAILROAD COMPANY (10/15/82)

filed: October 15, 1982.

KENNETH G. WALDO, APPELLANT,
v.
BESSEMER & LAKE ERIE RAILROAD COMPANY, A PENNSYLVANIA CORPORATION



No. 91 Pittsburgh, 1981, Appeal from the Order of the Court of Common Pleas, Civil Division, Butler County, Equity No. 79-035.

COUNSEL

Arnold L. Schulberg, Pittsburgh, for appellant.

Henry M. Wick, Jr., Pittsburgh, for appellee.

Johnson, Montemuro and Montgomery, JJ.

Author: Montemuro

[ 307 Pa. Super. Page 57]

The instant case began as an action in Equity for a determination of a leasehold interest in land used as a right-of-way by appellee railroad since 1892. Appellant, successor in interest to the original lessors, alleges that by May 2, 1973 the supposed right-of-way had been abandoned for all intents and purposes, and that by letter of June 19, 1973 he informed the appellee that under the terms of the leasehold agreement the property had reverted to him. It is undisputed on the record that at present trees have grown up between the tracks and that the tracks and ties are completely buried in various locations. It is also undisputed on the record that a portion of the same right-of-way located on the appellant's property has already been the subject of an Interstate Commerce Commission [hereafter "I.C.C." or "Commission"] determination of abandonment.

Appellant filed his complaint on May 9, 1979; appellee filed preliminary objections on June 27, 1979, alleging that the I.C.C. had exclusive jurisdiction over "abandonment of railroad branch lines"; that appellant had not exhausted statutory remedies; and that the leasehold issues could not be determined by the I.C.C.

After hearing on the matter, the trial court dismissed the complaint, deferring to jurisdiction in the I.C.C. We disagree and reverse for the following reasons:

We find considerable merit in appellant's argument that the wording of the Interstate Commerce Licensing Act [The Act] clearly contemplates that the provisions therein would be utilized by petitioner railroads. Samples of the language in two of the sections as quoted below assuredly support this contention.

[ 307 Pa. Super. Page 58]

    of the subsidy and minimum purchase price required to keep the line in operation, calculated in accordance with section 10905 of this title [49 USCS ยง 10905], and (iii) the name and business address of the person who is authorized to discuss sale or subsidy terms for the carrier.

(3) The rail carrier shall --

(A) send by certified mail a copy of the notice of intent to the chief executive officer of each State that would be directly affected by the ...


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