The opinion of the court was delivered by: PARKER
This proceeding arises under the Interstate Commerce Act (Act), 49 U.S.C. § 301 Et seq. Plaintiff Transport of New Jersey seeks an injunction restraining Greyhound Lines from offering specified bus transportation between the Philadelphia, Pennsylvania area and Atlantic City, New Jersey. The service was inaugurated by Greyhound on November 15, 1978. Transport alleges that Greyhound lacks the appropriate certificate of public convenience and necessity required by § 306(a) and its conduct is thus a "clear and patent violation" of the Act. This Court's jurisdiction is conferred under the provisions of § 322(b)(2).
Prior to instituting this proceeding, plaintiff filed a formal complaint against Greyhound with the Interstate Commerce Commission (Commission).
That complaint has not been acted on by the agency and an initial ruling is not expected within the next six months. However, in response to the Court's request the Commission filed an amicus memorandum in this case on December 7, 1978.
The plaintiff sought and was denied a temporary restraining order on November 17, 1978. It appearing that there were no material facts in dispute, the Court determined, with the parties' concurrence, that cross motions for summary judgment were appropriate. Such motions were filed and a hearing was held on December 8, 1978. After consideration of the legal memoranda and argument of counsel, and the Commission's amicus memorandum, the Court concludes that Transport of New Jersey is entitled to summary judgment and injunctive relief as a matter of law.
The material undisputed facts follow. Transport holds proper authority from the Commission to perform regular scheduled motor common carrier transportation of passengers between Philadelphia, Pennsylvania and Atlantic City, New Jersey. Service has been provided for more than 25 years and Transport now operates non-stop express buses in 23 daily regularly scheduled round trips from 4 locations in and around Philadelphia to Atlantic City. A round trip ticket costs $ 7.25.
Greyhound has a certificate of public convenience and necessity to transport passengers and their baggage over irregular routes, "in special operations, in round trip sightseeing or pleasure tours," between various points, and insofar as relevant here, including certain counties in the state of Pennsylvania and Atlantic City, New Jersey. On November 15, 1978, Greyhound began regularly scheduled, round trip twice daily transportation of passengers from 13 fixed locations in and around Philadelphia to the Resorts International Hotel Casino (Casino) in Atlantic City.
The defendant operates this service over three separate routes for a total of at least 6 buses a day Monday through Friday. Each trip includes a stay in Atlantic City from six to eight hours. Although advance seat reservations are available, the general public is not restricted and anyone may board a bus at any one of the 13 pick-up points on a first-come, first-serve basis. There is no group membership or affiliation requirement of any kind. The cost of the round trip ticket is $ 12.
At the Casino, Greyhound passengers are provided various amenities including immediate access to facilities, a meal or an evening theater performance if available, a booklet on gaming, and a color coded lapel button which affords full recognition by Casino representatives. These amenities are provided by and paid for in large part by the Casino.
In 1965, the Interstate Commerce Act was amended to permit any person injured by a "clear and patent violation" of certain sections of the Act, including § 306, to apply to a federal district court for injunctive relief under § 322(b) (2). Before the amendment, only the Commission could seek injunctive relief when a carrier operated without a certificate of public convenience and necessity. The House Report stated that the 1965 amendment of § 322(b) was intended
to afford injured parties a measure of self-protection against operations which are openly and obviously unlawful. (T)he words "clear and patent" are used and are intended as a standard of jurisdiction rather than as a measure of the required burden of proof. (1965) U.S.Code Cong. & Admin.News, Vol. 2, 2923, 2931.
Plaintiff relies upon this self-help provision, § 322(b)(2), and contends that Greyhound's bus operation between Philadelphia and Atlantic City is not authorized by its certificate and is in "clear and patent" violation of § 306(a). In response, Greyhound argues that the challenged service is a "special operation" round trip, sightseeing or pleasure tour specifically authorized by its certificate and, therefore, does not violate § 306(a).
Greyhound also contends that in any event its services are not in "clear and patent" violation of the section. The Court agrees with Transport and rejects the argument that the defendant's service is authorized under its limited certificate.
What constitutes a "special operation" in round trip, sightseeing or pleasure tours was discussed and considered fully in Asbury Park-New York Transit Corp. v. Bingler Vacation Tours, Inc., 62 M.C.C. 731 (1954). At page 739 of that frequently cited opinion such service was defined as all passenger operations which are neither "ordinary day-to-day scheduled regular-route common carriage of passengers" nor "charter operations in which a group organized by someone other than the carrier is sold the exclusive use of a vehicle." The Commission noted in its discussion that round trip sightseeing or pleasure tours in special operations must include:
Greyhound contends that the extras its passengers receive in connection with their transportation to the Casino are "substantial" and therefore meet the Asbury Park test. This Court does not agree with that position nor does the Commission in its amicus memorandum.
The Asbury Park ruling did not list the additional things a transportation service "must possess" to become a tour. However, the Commission did point out characteristics considered significant in earlier cases. One such case emphasized that the carrier conducted "a wide variety of extensive tours as well as 1-day tours," and placed considerable significance upon the presence of "the direct supervision of a tour conductor" in distinguishing special operations. Another noted that special tours included the cost of entrance fees and the services of guides to discuss the points of interest along the routes, such operations being designed "to meet the needs of sightseers and not . . . persons desiring expeditious transportation between points." Another tour included all necessary expenses such as transportation, meals, lodging, guides, excursions, and the like.
The main attraction of the Greyhound trip is not sightseeing, nor is it a meal, a lapel button or a gaming pamphlet; but rather direct, expeditious transportation to the Casino and its games of chance. The extras connected with the Greyhound trip, like the racetrack admission ticket in Asbury Park, are peripheral not substantial. Nor does Greyhound even pay for all of them. ...