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F.P. CORP. v. KEN WAY TRANSP.

March 15, 1994

F.P. CORP., Plaintiff
v.
KEN WAY TRANSPORTATION, INC., R.M. PALMER COMPANY, and M. POLANER, INC., Defendants



The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD

 HUYETT, J.

 I. BACKGROUND

 F.P. Corp. ("Plaintiff") commenced this action pursuant to the Interstate Commerce Act, 49 U.S.C.A. § 10101 et seq. ("ICA"), against Defendants Ken Way Transportation, Inc. ("Ken Way"), R.M. Palmer Company ("Palmer"), and M. Polaner, Inc. ("Polaner") to recover undercharges for freight shipments Plaintiff made between May 1988 and June 1990.

 On May 24, 1988, Plaintiff, a motor common carrier and a motor contract carrier, entered into a contract carrier agreement with Ken Way, a licensed transportation broker, for the benefit of Ken Way's shipper customers, Palmer and Polaner. Between May 1988 and June 1990, in accordance with the agreement, Ken Way tendered goods to Plaintiff for transportation. Plaintiff billed, and Ken Way paid, the price agreed upon at the time of shipment. These prices were below the common carrier rates contained in the tariff that the ICA requires carriers to "publish and file" with the ICC. 49 U.S.C.A. § 10762. Plaintiff contends that, under the filed rate doctrine, it is entitled to the higher filed tariff rate because it acted as a motor common carrier when it transported the freight tendered by Ken Way.

 On July 20, 1992, Ken Way filed a petition with the Interstate Commerce Commission ("ICC") requesting a declaration that Plaintiff's shipments constituted contract carriage or, in the alternative, that the tariff rates Plaintiff seeks to collect are unreasonable or inapplicable.

 By Order dated April 8, 1993, this Court stayed the present action and referred to the ICC determination of the nature of the carriage and reasonableness of rates. The ICC determined that Plaintiff's transportation services constituted contract carriage and, therefore, Plaintiff was not entitled to recover for undercharges *fn1" . Based on the ICC decision, Defendants have filed a motion for summary judgment on Plaintiff's complaint. *fn2" For the reasons stated below, the Court grants Defendants' motion.

 II. DISCUSSION

 A. Summary Judgment Standard

 Summary judgment is proper when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). This Court's role is to determine "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 637 (3d Cir. 1993). The moving party has the burden of demonstrating that no genuine issue of fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Further, the evidence must be viewed in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962). However, if the non-moving party fails to adduce sufficient evidence in connection with an essential element of the case for which it has the burden of proof, the moving party is entitled to summary judgment as a matter of law. Celotex, 477 U.S. at 322.

 B. Filed Rate Doctrine

 Under the filed rate doctrine, a motor carrier may not charge or receive compensation different from that specified in the tariff rate filed with the ICC. 49 U.S.C.A. § 10761(a). The Supreme Court has strictly construed the doctrine and shippers are deemed to have constructive notice of the applicable filed rate. Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116, 126-28, 130, 111 L. Ed. 2d 94, 110 S. Ct. 2759 (1990). In the past, the filed rate doctrine applied to both contract and common carriers. Covey v. ConAgra, Inc., 788 F. Supp. 1160, 1162 (D. Colo. 1992). However, through exercise of its statutory authority *fn3" , the ICC has exempted motor contract carriers from the filed rate doctrine. Id. ; Atlantis Express v. Standard Transp. Serv., 955 F.2d 529, 533 (8th Cir. 1992); Exemption of Motor Contract Carriers from Tariff Filing Requirements, 133 M.C.C. 150 (1983), aff'd sub nom. Central & S. Motor Freight Tariff Ass'n v. United States, 244 U.S. App. D.C. 226, 757 F.2d 301 (D.C. Cir.), cert. denied, 474 U.S. 1019, 88 L. Ed. 2d 553, 106 S. Ct. 568 (1985). Accordingly, the threshold question in determining Plaintiff's right to undercharges is whether Plaintiff acted as a motor common carrier or motor contract carrier when it transported the freight tendered by Defendants. If plaintiff acted as a motor contract carrier it may not maintain this action. Atlantis Express, 955 F.2d at 533.

 C. Nature of Carriage

 The Motor Carrier Act defines "motor contract ...


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