"(a) relevant rate comparisons, (b) a carrier's proffer of a particular rate, (c) whether the rate would have moved the traffic had it been assessed at the time the shipment took place, (d) the class rates for like traffic, and (e) tariff analysis."
Id. at 74.
Defendants by affidavit, and by reference to Exhibit A of Plaintiff's amended complaint, have provided evidence to show that the tariff rates in effect at the time of the shipments were well above the negotiated contract rates--an average of 118 percent higher than the contract rates for claims against Defendant Ken Way, and an average of 138 percent higher on claims against Defendant Palmer. While Defendants have not provided the Court with evidence of the competitive rate levels generally available in the industry to compare with Plaintiff's filed tariff rates, see Horn's Motor Express v. Harrisburg Paper Co., 765 F. Supp. 211, 217 (M.D. Pa. 1991), the Court nevertheless concludes that the evidence presented by Defendants is sufficient to justify referral to the ICC. The Court will accordingly refer the issue of rate unreasonableness to the ICC pursuant to the doctrine of primary jurisdiction.
Defendant has also raised affirmative defenses to Plaintiff's amended complaint concerning the tariff-based rates that properly apply, the proper interpretation and construction of these tariff-based rates, and the proper method of calculating the amount it owes to Plaintiff under the filed rate doctrine. The ICC has stated that it has "primary jurisdiction over all issues regarding the lawfulness, applicability, and reasonableness of tariffs, over what constitutes bona fide contract carriage, and over credit and collection practices by motor carriers. Consequently, these issues should be tested initially before us (subject to appropriate judicial review if necessary)." Nonoperating Motor Carriers--Collection of Undercharges, Ex Parte No. MC-208, 8 I.C.C. 2d 742, 752 (1992). The Court, therefore, will refer these issues to the ICC under the doctrine of primary jurisdiction.
Finally, the Supreme Court in Reiter v. Cooper noted that the use of the term "referral" to the ICC is technically incorrect because the Interstate Commerce Act does not contain a mechanism for a court, on its own authority, to demand or request a determination from the ICC. Rather, the court merely stays its proceedings while the shipper files an administrative complaint under 49 U.S.C. § 11701(b). Reiter v. Cooper, 122 L. Ed. 2d 604, 61 U.S.L.W. 4232, 4235, 113 S. Ct. 1213 n.3 (U.S. Mar. 8, 1993) (No. 91-1496). In this case, Defendant Ken Way filed a petition for declaratory relief before the Commission on July 20, 1992 in which it asked the ICC to determine the nature of the carriage and the issues of tariff application and interpretation, rate reasonableness, and the method of calculation under the filed rate doctrine. Accordingly, this Court will stay the proceedings in this action pending the decision of the ICC on Defendant's petition.
An appropriate order follows.
Daniel H. Huyett, 3rd, Judge
ORDER - April 14, 1993, Filed, Entered
Upon consideration of Defendants Ken Way Transportation, Inc., R.M. Palmer Company, and M. Polaner, Inc.'s motion to stay proceedings in this action and to refer certain issues to the Interstate Commerce Commission, Plaintiff F.P. Corp.'s response, and Defendants' reply:
1. Defendants' motion to stay proceedings in this action is GRANTED.
2. This action is STAYED pending the decision of the Interstate Commerce Commission in Ken Way Transportation, Inc.--Petition For Declaratory Order--Certain Rates and Practices of F.P. Corp., Docket No. 40840.
3. The Clerk of this Court shall mail a certified copy of this Memorandum and Order to the Interstate Commerce Commission. The Court requests that the Commission forward a copy of its decision of Ken Way Transportation, Inc.'s petition for a declaratory order to the Clerk of this Court.
4. The Court will place this matter in civil suspense until the Interstate Commerce Commission renders its decision or upon further order of this Court.
IT IS SO ORDERED.
Daniel H. Huyett, 3rd, Judge