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SCOTT TOWNSHIP v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (12/09/58)

December 9, 1958

SCOTT TOWNSHIP, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeal, No. 248, April T., 1958, from order of Pennsylvania Public Utility Commission, No. A 84931, in case of Township of Scott v. Pennsylvania Public Utility Commission et al. Order affirmed.

COUNSEL

Maurice Louik, with him David M. Harrison, H. David Rothman, and Harrison & Louik, for township, appellant.

Morris Mindlin, Assistant Counsel, with him Thomas M. Kerrigan, Counsel, for Pennsylvania Public Utility Commission, appellee.

Charles J. Queenan, Jr., with him Willis McCook Miller, and Kirkpatrick, Pomeroy, Lockhart & Johnson, for railroad, intervening appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Ervin, and Watkins, JJ. (woodside, J., absent).

Author: Rhodes

[ 188 Pa. Super. Page 176]

OPINION BY RHODES, P.J.

This is an appeal by the Township of Scott, Allegheny County, from an order of the Pennsylvania Public Utility Commission allocating to the township a portion of the cost of maintenance of a bridge at a highway-railroad crossing. The appeal questions the jurisdiction of the commission; in the alternative the sufficiency of the evidence to support the order is challenged. The commission is also charged with an abuse of discretion in refusing a petition of the township for rehearing.

On October 28, 1957, the Pittsburgh & West Virginia Railway Company applied to the commission for the allocation of the costs of maintaining a bridge over which the Old Bower Hill Road in Scott Township crosses the grade of its track. The Pennsylvania Department of Highways and the Township of Scott filed answers protesting the application. A hearing was held on January 13, 1958. From the record it appears that a bridge existed at this crossing prior to 1918, and that in 1918 the present bridge was constructed by virtue of an order of the commission. The order for construction in 1918 directed the railroad to maintain the guard rails on the approaches, but with respect to all other maintenance it was silent. Since 1918, however, the railroad has voluntarily borne all costs of maintenance. Over the past several years the annual cost of maintenance has averaged $320. In 1957, the railroad replaced the plank deck of the bridge with metal grating at a cost of $17,952. A witness testified that at the time of the hearing the bridge was "shipshape and now up to date." It was shown that the nature and extent of the traffic over the bridge had changed since 1918; and that traffic was likely to be increased because of the construction of the John Kane Memorial County Hospital in the vicinity, and

[ 188 Pa. Super. Page 177]

    the widening and improvement of two state highways which are connected by the Old Bower Hill Road. A traffic count established that approximately 550 automobiles and 100 trucks use this bridge every twenty-four hours.

The railroad indicated that it would be willing to continue to maintain the substructure and superstructure of the bridge, but it would have some other agency maintain the roadway, including the bridge floor members.

The commission, by its order of June 2, 1958, approved the application, and ordered that the Township of Scott thereafter maintain, in a safe and proper condition, the steel grating floor, the steel curbs and guard railing on the bridge, as well as the highway approaches to the bridge, including the guard fence. The railroad was ordered to maintain, at its ...


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