On Appeal from the order dated March 9, 1977 of The United States District Court for the Western District of Pennsylvania at Docket No. 76-534.
Adams and Weis, Circuit Judges, and Coolahan, Senior District Judge.*fn*
COOLAHAN, Senior District Judge
This is an appeal pursuant to 28 U.S.C. § 1291 from a final judgment and order of the United States District Court for the Western District of Pennsylvania dismissing plaintiff's complaint. The sole question presented is whether the District Court erred in ruling that a certain Interstate Commerce Commission order was an order "for the payment of money" within the meaning of 49 U.S.C. § 16(3)(f), which sets forth a one-year limitation period under which plaintiff's complaint for enforcement of said order would be barred. We have determined that this ruling was incorrect and should be reversed.
Plaintiff, Emeryville Trucking, Inc., is the owner of a fleet of trucks used in the business of transporting freight. Defendant Hennis Freight Lines, Inc., is a long-distance common carrier. On December 31, 1975, Hennis was merged into the defendant Spector Industries, Inc., also a long-distance hauler. Spector assumed both the rights and liabilities of Hennis.
From December 1967 to October 24, 1975, Emeryville leased certain of its vehicles to Hennis. Emeryville was to provide a driver for each truck and was to pay road expenses, including fuel and such other expenses necessary for the proper operation of the vehicle. Hennis, under the written agreements between the parties, was to pay Emeryville 75% of its gross revenue on shipments transported on Emeryville's equipment, which was to cover the equipment rental, road expenses, and the driver's wages and benefits.
In response to the national fuel crisis of 1973-1974 and the marked increases in fuel costs affecting the trucking industry, the Interstate Commerce Commission promulgated an order, effective February 7, 1974, authorizing motor carriers to impose a surcharge, not in excess of 6%, upon all charges to shippers which involved the use of fuel. Special Permission No. 74-2525, Emergency Fuel Surcharge for Line-Haul Transportation Charges & Other Charges --Motor Common Carriers (set out as Appendix A). Special Permission No. 74-2525 was amended by Ex Parte No. MC-92, Investigation of Impact of Rising Costs on Motor Common Carriers, effective July 25, 1974 (set out as Appendix B). It provided that no owner-operator was to receive less compensation for fuel than it received under Special Permission No. 74-2525, and it further established a 3.09% surcharge rate. Ex Parte No. MC-92 remained in effect until April 2, 1975, when it was cancelled by the Interstate Commerce Commission.
The complaint alleges that during the period from July 1974 (effective date of Ex Parte No. MC-92) until April 1975 (discontinuance date of Ex Parte No. MC-92), the defendant, pursuant to surcharge procedures established by the Interstate Commerce Commission and based upon authenticated receipts for fuel from plaintiff's drivers, collected from its shippers a cumulative sum in the amount of $12,881.76 as reimbursement for the increased cost of fuel and placed said sum in its Contingent Reserve Fund. Hennis did not pass through the surcharge amounts to Emeryville for various reasons (these defenses are not properly the subject of this appeal). Emeryville demanded payment of this sum on various occasions.
Thereafter, on April 22, 1976, Emeryville filed a complaint in the District Court against Hennis and Spector to recover the fuel surcharges established by the Interstate Commerce Commission's orders. Defendants moved for dismissal on the grounds that Ex Parte e. MC-92 was an order for the payment of money and since the complaint was not filed within one year of July 25, 1974 (the effective date of Ex Parte No. MC-92), it was barred by 49 U.S.C. § 16(3)(f), which provides:
"A complaint for the enforcement of an order of the commission for the payment of money shall be filed in the district court or the State court within one year from the date of the order, and not after."
The District Court ruled that Ex Parte No. MC-92 was an order for the payment of money and, since the complaint was not filed within one year of the effective date of that order, it was barred by 49 U.S.C. § 16(3)(f), hence this appeal.
The sole issue we must resolve is the applicability of 49 U.S.C. § 16(3)(f), which only applies if Ex Parte No. MC-92 is found to be an order for the payment of money. The United States Court of Appeals for the Seventh Circuit has recently considered the same question in the similar case of Carothers v. Western Transportation Co., 554 F.2d 799 (7th Cir. 1977), rev'g 412 F. Supp. 1158 (S.D. Ill. 1976). In Carothers, the issue was whether Special Permission No. 74-2525 was an order for the payment of money within the meaning of 49 U.S.C. § 16(3)(f).*fn1 The District Court had held that the order was an order for the payment of money and, consequently, that plaintiff's suit was barred. The Seventh Circuit, in reversing the District Court, ruled that the order was not one for the payment of money and, therefore, that the action was not barred by 49 U.S.C. § 16(3)(f).*fn2 The defendant has argued before this Court that the Seventh Circuit erred in its reversal in the Carothers case.
Hennis claims that because Emeryville's complaint is one for money and is based upon violations of Ex Parte No. MC-92, this order must be considered an order for the payment of money for Emeryville's suit to make sense. Emeryville, on the other hand, maintains that an order for the payment of money must be for a sum certain or readily ascertainable. Emeryville also claims that § 16(3)(f) should be read in conjunction with 49 U.S.C. §§ 16(1) and (2).*fn3 Section 16(1) grants authority to the Interstate Commerce Commission to order the payment of damages when appropriate in connection with its power to conduct hearings to resolve complaints filed with that agency. Section 16(2) allows for judicial enforcement ...