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SALEM TRANSP. CO. v. UNITED STATES

June 29, 1970

Salem Transportation Co., Inc., Plaintiff
v.
United States of America, Interstate Commerce Commission, Defendants and Yellow Limousine Service, Inc., Intervenor



The opinion of the court was delivered by: POLLACK

POLLACK, District Judge:

A three-judge district court has been convened pursuant to 28 U.S.C. §§ 2325 and 2284 on the complaint of Salem Transportation Co., Inc. ("Salem" hereafter) against the Interstate Commerce Commission ("ICC" hereafter). The complaint asserts that by an order the ICC issued in November, 1967, it is sanctioning a violation of a certificate of public convenience and necessity held by Salem's competitor, Yellow Limousine Service, Inc., ("Yellow" hereafter). Moreover, Salem claims that in so doing the ICC is being inconsistent with its own prior rulings. Yellow has appeared as an intervenor opposing Salem's complaint.

Salem seeks an injunction restraining operation of the ICC order. That order adopts the report and findings of a hearing examiner and rejects Salem's demand that the ICC issue a direction to Yellow to cease and desist its questioned conduct.

 Salem's petition for a reconsideration of the ICC order was denied on March 8, 1968.

 Jurisdiction in this Court is premised on 28 U.S.C. § 1336; venue, on 28 U.S.C. § 1398.

 The facts are as follows:

 Both Salem and Yellow operate a limousine service between the Philadelphia International Airport and Atlantic City, New Jersey, under the jurisdiction and authority of the ICC. *fn1"

 According to the certificate of public convenience and necessity authorizing its operations, Salem is to provide special operations, non-scheduled door-to-door service over irregular routes; Yellow's certificate calls for scheduled service over a specified regular route.

 In the complaint it filed with the ICC, Salem alleged that Yellow was operating in violation of its certificate. Although Yellow had scheduled departure times, it did not have scheduled arrival times; moreover, it picked up passengers from and delivered passengers to, their particular hotels, motels, and boarding houses in Atlantic City, thus performing unauthorized door-to-door service.

 The Commission's November, 1967 order found that Yellow had been in violation of its certificate. However, a cease and desist order was not issued because the ICC also found that Yellow was "'taking immediate steps to revise its schedule in order to designate therein the times of arrival at points of destination, and to designate the Chalfonte-Haddon Hall Hotel as its terminal in Atlantic City'." Salem Transp. Co., Inc. v. Yellow Limousine Service, Inc., 107 M.C.C. 463, 464 (1967).

 The hearing examiner's report adopted by the Commission included the statement, "The above conclusion, however, is not to be construed as precluding Yellow, after it establishes a terminal point in Atlantic City and offers and renders fixed departure and arrival schedules, from picking up and discharging passengers at other locations within the corporate limits of Atlantic City as an adjunct to its regular-route service between the Airport and its Atlantic City terminal." 107 M.C.C. at 470-71.

 It is this sanction which Salem would have this Court set aside and enjoin.

 The power of a Court is restricted when it is called upon to review the determination of an administrative agency. The Court is "limited to ascertaining whether there is warrant in the law and the facts for what the Commission has done. Unless in some specific respect there has been prejudicial departure from requirements of the law or abuse of the Commission's discretion, the reviewing court is without authority to intervene." United States v. Pierce Auto Freight Lines, 327 U.S. 515, 536, 66 S. Ct. 687, 698, 90 L. Ed. 821, 835 (1946). See also, Western Union Telegraph Co. v. United States, 217 F.2d 579 (2d Cir. 1954), and cases cited therein.

 Plainly a permissible administrative determination was made here. It was within the ICC's powers; and because we reject Salem's allegations that it was inconsistent with prior Commission ...


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