The opinion of the court was delivered by: Hay, Magistrate Judge
Plaintiffs, Sun Coach Lines, L.L.C. and Pennsylvania Transit Services, Inc. bring, this action against Defendant, Port Authority of Allegheny County (Port Authority), alleging that its denial of their request for a licence to use the Martin Luther King, Jr. East Busway to transport passengers into and out of downtown Pittsburgh violates their right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Plaintiffs and Defendant have filed cross-motions for summary judgment. After careful consideration of the motions, the memoranda of law in support and in opposition and the supporting materials supplied by the parties, this Court will grant Defendant's motion and deny Plaintiffs' motion.
Plaintiff Sun Coach Lines, L.L.C. is a Pennsylvania limited liability company. (Compl. ¶ 1.)*fn1 Plaintiff Pennsylvania Transit Services, Inc. is a Pennsylvania corporation. (Compl. ¶ 2.)
Defendant Port Authority is "a public bod[y] corporate and politic" created in 1959 under the Second Class County Port Authority Act, 55 P.S. §§ 551-563.5. 55 P.S. § 553(a). (Pls.' App. Ex. A; Ex. B at 2-3.)*fn2
The Port Authority owns and operates three exclusive bus rights-of-way, known as busways, in Allegheny County. (Pls.' App. Ex. C at Doc. No. PAAC 0095; Pls.' App. Ex. D at Doc. Nos. PAAC 0125-0126.) One of these busways is known as the Martin Luther King, Jr. (East) Busway (the "East Busway"), which is a two-lane concrete roadway that travels between Wilkinsburg and downtown Pittsburgh. (Pls.' App. Ex. C at Doc. No. PAAC 0095; Pls.' App. Ex. D at Doc. No. PAAC 0126.)
Through December 2005, Plaintiffs operated a bus route from points outside Allegheny County into downtown Pittsburgh via the East Busway as a subcontractor for the Westmoreland County Transit Authority ("WCTA"). (Compl. ¶ 5; Answer ¶ 5*fn3 .) Plaintiffs had been a subcontractor of the WCTA since approximately 2000. (Pls.' App. Ex. E.)
Plaintiffs state that, as a subcontractor to WCTA, they complied with all existing safety requirements and operational conditions required by the Port Authority for use of the East Busway. (Compl. ¶ 6; Answer ¶ 6.) Defendant counters that it did not monitor whether Plaintiffs complied with these conditions, but left that responsibility to WCTA.
Plaintiffs discontinued operations as a subcontractor to the WCTA in December 2005. (Compl. ¶ 7; Answer ¶ 7; Pls.' App. Ex. E.) Shortly thereafter, in December 2005, Plaintiffs, through their attorneys, contacted representatives of the Port Authority to discuss a license or permission for Plaintiffs to use the East Busway to provide for transportation from points outside Allegheny County into downtown Pittsburgh and outbound via the East Busway. (Compl. ¶ 8; Answer ¶ 8; Pls.' App. Ex. F at Doc. No. PAAC 0703.)
At the time they initially contacted the Port Authority in December 2005 to "request[ ] a cost to use the East Busway for their private passenger transit business," Plaintiffs "retain[ed] the drivers and equipment certified to operate on the East Busway." (Pls.' App. Ex. F at Doc. No. PAAC 0703.)
In January 2006, William Buck, Plaintiffs' counsel, sent emails to Henry Nutbrown, an employee of the Port Authority, to determine the status of the Port Authority's review of Plaintiffs' request to operate and utilize the East Busway. (Pls.' App. Ex. G at Doc. Nos. PAAC 0667-0669.) On January 26, 2006, Nutbrown sent an email to Buck stating that "[i]n order to properly address [Plaintiffs'] request, [the Port Authority] will need to know [14 pieces of] information[.]" (Pls.' App. Ex. G at Doc. No. 0667; Compl. ¶¶ 10-11; Answer ¶¶ 10-11.)
On February 27, 2006, Lynda Conway, an employee of the Port Authority, submitted an interoffice memorandum regarding Plaintiffs' inquiry into "whether or not [Plaintiffs] would be able to continue to operate on the East Busway." (Pls.' App. Ex. H at Doc. Nos. PAAC 0648-0650.) Conway personally "d[id] not recommend permitting private carriers to operate on the [Port Authority's] busways for [several] reasons . . .." (Id. at Doc. No. PAAC 0648.) The memorandum did state, however, that the "Port Authority, in the late 70's and early 80's, did permit a private bus companies [sic] to operate only their commuter run on the South Busway." (Id. at Doc. No. 0649). The February 27, 2006 memorandum also stated that "[t]oday, private companies are only permitted to use the East Busway from Penn Station to 26th Street for layovers/recoveries and only for their commuter service." (Id.)
The memo referenced a July 6, 2005 memorandum prepared by Michael Zamiska, Chairman of the Port Authority's Operations and Safety Review Committee, in which Zamiska indicated the "nearly unanimous" rejection of a proposal to allow private carriers to utilize the Port Authority's busways for a fee. (Def.'s App. Ex. I.)*fn4 Zamiska stated that the Pennsylvania Department of Transportation's State Oversight Committee had indicated in 2001 that a proposal to allow access for taxis and limousines on Port Authority busways "raise[d] significant safety issues." (Id.)
On March 24, 2006, Buck responded to Nutbrown's January 2006 request for additional information. (Pls.' App. Ex. I.) This March 24, 2006 email stated, in part, that [Plaintiffs] anticipate[ ] operating five buses during the morning commute and five buses during the afternoon commute each day of the week for public/private service with no layovers in downtown Pittsburgh or on the East Busway. [Plaintiffs] propose[ ] to enter the East Busway at the Wilkinsburg exchange. [Plaintiffs] use[ ] MCI-102 D3 buses (28,000 lbs. empty/42,000 lbs. loaded), which have a capacity for 49 passengers. [Plaintiffs] maintain[ ] certified, licensed drivers to carry passengers via the East Busway, as [they] did as a contractor [with WCTA], and [their] fleet remains compliant with all license and insurance requirements. (Id.)
Approximately one month later, on April 24, 2006, Nutbrown responded to Buck's email with another set of questions for Plaintiffs to answer, this time numbering 12 separate items. (Pls.' App. Ex. J at Doc. Nos. PAAC 0662-0663.)
On May 18, 2006, Buck responded via email to Nutbrown's April 24, 2006 email requesting the 12 additional pieces of information. (Pls.' App. Ex. K at Doc. Nos. PAAC 0657-0658.) Buck's email reminded Nutbrown that Plaintiffs "served as a contractor for a transit authority [i.e., the WCTA through December 2005] and as such was required to comply with these [same] requirements at that time." (Id. at Doc. No. PAAC 0657.) Defendant maintains that Plaintiffs' response contained incomplete information and/or otherwise indicated that the information would be provided at a later date.
In a June 13, 2006 letter to James Dodaro, Treasurer of the Port Authority, Plaintiffs' counsel stressed that Plaintiffs could not "move forward with any prospective operations without an understanding of the cost structure or license fee to be required by the Port Authority" for Plaintiffs' use of the East Busway. (Pls.' App. Ex. L at Doc. Nos. PAAC 0671-0672.)
In March 2007, Plaintiffs' counsel contacted the Port Authority to determine the status of their request to use the East Busway. (Pls.' App. Ex. M at Doc. No. PAAC 0647.) Christopher Hess, Assistant General Manager of Legal & Corporate Services for the Port Authority, responded in a letter dated March 19, 2007 that the Port Authority "will consider the additional information to be submitted by [Plaintiffs] in evaluating its application," and that it "is currently attempting to address the costs and operational issues associated with such usage." (Id.)
Plaintiffs again contacted the Port Authority on April 12, 2007. Buck wrote as follows to Christopher Hess:
In the interest of expediting the Port Authority's review of my clients request, I need to know what information is required concerning the number of anticipated runs, both in the morning and evening, as well as our position that no PUC certificate is required to operate these particular runs. As we have indicated in prior correspondence, my clients anticipate five bus runs in the morning between 6:45 a.m. and 8:30 a.m. and five bus runs in the afternoon between 4:30 p.m. and 6:00 p.m. The buses will not remain on the East Busway following completion of each particular trip.
If the Port Authority requires additional information or a more detailed response, then a representative of the Port Authority must respond to my inquiries. I assume the Port Authority does not anticipate that my clients will go out and conduct studies as to timing and route patterns without any indication that a license will be granted.
I understand the necessity of reviewing route plans and safety requirements when contemplating whether to grant a license to use the East Busway, however my clients have not received any information regarding the rate structure or license fee. My presumption is that the rate and license fee will be the same or similar to those already using the East Busway, regardless of the fact that it may be the most utilized route in the Port Authority's system, to eliminate any potential disparate treatment between providers.
My clients believe that the Port Authority's continued delay in responding to our inquiries, providing information on the license fee structure and the issuance of the license has caused considerable ...