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DEPARTMENT HIGHWAYS v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (01/21/58)

January 21, 1958

DEPARTMENT OF HIGHWAYS, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeal, No. 11, March T., 1957, from order of Pennsylvania Public Utility Commission, Docket No. 15111, in case of The Department of Highways of the Commonwealth of Pennsylvania v. Pennsylvania Public Utility Commission. Order affirmed.

COUNSEL

Nelson M. Galloway, Assistant Attorney General, with him John R. Rezzolla, Jr., Deputy Attorney General, and Thomas D. McBride, Attorney General, for Department of Highways, appellant.

Miles Warner, Assistant Counsel, with him Thomas M. Kerrigan, Acting Counsel, for Public Utility Commission, appellee.

Harold B. Bornemann, with him Josephine H. Klein, for railroad, intervening appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Rhodes

[ 185 Pa. Super. Page 420]

OPINION BY RHODES, P.J.

This is an appeal by the Department of Highways of the Commonwealth of Pennsylvania from an order of the Pennsylvania Public Utility Commission allocating certain costs of construction against the department in a project involving the reconstruction of a railway-highway grade separation structure.

The proceeding was initiated on November 29, 1950, when the Schuylkill County Motor Club filed a complaint with the commission alleging that the highway underpass carrying State Highway Traffic Routes 443 and 29 underneath the single track of the Lehigh and New England Railroad Company in West Penn Township, Schuylkill County, was dangerous and inadequate by reason of insufficient vertical and horizontal clearances and should be reconstructed for the safety, accommodation, service, and convenience of the public. After hearing on March 1, 1951, the commission, on

[ 185 Pa. Super. Page 421]

May 28, 1951, directed the department, with the cooperation of the railroad, to prepare plans and cost estimates for the alteration or reconstruction of the crossing below grade. At a further hearing held on November 26, 1952, the department presented its plans and cost estimates for the reconstruction of the bridge and the highway passing thereunder. At this time a witness for the department testified that no federal funds were available for this project. The cost estimate of the department for the bridge was $175,459.20, while the cost estimate of the railroad for the bridge alone was $128,148. The department on behalf of the Commonwealth agreed to assume the entire estimated cost of the highway construction, as distinct from the bridge, amounting to $181,641.05. Thus the total cost estimates were $357,100.25. On April 20, 1953, the commission, sustaining the complaint of the Schuylkill County Motor Club, issued its order approving plans prepared by the department and directing, inter alia, that the railroad pay the department $35,000 toward the cost of construction of the improvement. In this same order the commission disposed of the railroad's request that federal funds be used to defray the expense of the improvement by noting testimony of the department's witness that no such funds were available, and adding that the commission could not direct the department to utilize federal funds.

On May 8, 1953, the Lehigh and New England Railroad Company filed a petition for reconsideration and modification of the commission's order of April 20, 1953, in which it alleged that the assessment of $35,000 against the railroad was unjust and unreasonable, and in which it requested that the commission defer the effective date of the order until federal funds had been obtained for ...


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