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ALLEGHENY COUNTY PORT AUTHORITY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (11/28/67)

decided: November 28, 1967.

ALLEGHENY COUNTY PORT AUTHORITY, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION



Appeal from order of Superior Court, April T., 1967, No. 38, affirming order of Pennsylvania Public Utility Commission, No. A93067, in case of Port Authority of Allegheny County v. Pennsylvania Public Utility Commission, Pittsburgh Railways Company, City of Pittsburgh et al.

COUNSEL

Edward L. Springer, with him Louis M. Tarasi, Jr., and Burgwin, Ruffin, Perry, Pohl & Springer, for appellant.

Anthony L. Marino, Assistant Counsel, with him Joseph C. Bruno, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.

Thomas S. White, Assistant City Solicitor, and David Stahl, City Solicitor, for intervening appellee.

Donald A. Brinkworth, for intervening appellee.

Gilbert E. Morcroft, for intervening appellee.

William D. Sutton, with him Harry H. Frank, and Thorp, Reed & Armstrong, and McNees, Wallace & Nurick, for intervening appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Concurring and Dissenting Opinion by Mr. Justice Roberts.

Author: O'brien

[ 427 Pa. Page 564]

The Public Utility Commission, on October 24, 1966, issued an order relieving Pittsburgh Railways Company of any responsibility to maintain a crossing located in Allegheny County, known generally as the "Black's Bridge" crossing and placing that responsibility on the Port Authority of Allegheny County.

[ 427 Pa. Page 565]

That order was the culmination of a lengthy proceeding which commenced, insofar as the Authority is concerned, when the Commission, in February of 1964, joined the Authority as a respondent in a highway-rail crossing proceedings involving Black's Bridge. From that time to the present, the Authority has been involved in a complex of litigation involving three appeals to the Superior Court. The Authority first appealed the refusal of the Commission to dismiss it as a party respondent. The Superior Court quashed the appeal as being from an interlocutory order, inasmuch as no assessment had as yet been made against the Authority. The second appeal was from the Commission's order assessing the Authority and Railways, jointly and severally, 30% of the costs incident to the construction of a new bridge to replace the existing one. The Superior Court, in Allegheny Co. Port Auth. v. Pa. P.U.C., 207 Pa. Superior Ct. 299, 217 A.2d 810 (1966), remanded the record to the Commission for further proceedings upon the ground that the record showed no basis for assessing the Authority. Before the Commission could take any additional evidence relative to the assessment of costs in the construction of a new bridge, Railways filed a petition requesting that the maintenance responsibility for the existing bridge be transferred from it to the Authority. The Commission held a consolidated hearing on Railways' petition and the issue remanded to it by the Superior Court and issued the order here in dispute. The Superior Court affirmed the Commission's order and we granted allocatur.

Throughout the course of this litigation, in this phase as well as its earlier phases, the Authority has consistently taken the position that it has no concern with the Black's Bridge crossing, and, accordingly, is not subject to the Commission's statutory assessment powers in regard thereto under §§ 409-412 of the Public

[ 427 Pa. Page 566]

Utility Law, Act of May 28, 1937, P. L. 1053, as amended, 66 P.S. §§ 1179-1182.

The Port Authority bases its argument upon the following considerations: The Port Authority was created by the Second Class County Port Authority Act, Act of April 6, 1956, P. L. (1955) 1414, 55 P.S. § 551 et seq. In 1959, the General Assembly amended the Port Authority Act, to authorize the Authority to establish an integrated system of mass transportation for passengers within Allegheny County and portions of other counties adjacent thereto, which together constitute its service area.

Pursuant to the Second Class County Port Authority Act, the Board of County Commissioners of Allegheny County, on April 23, 1963, approved the Port Authority's Plan for an integrated system of mass transportation. Thereafter, on February 26, 1964, the Authority condemned Railways' transportation system, thereby acquiring Railways' ...


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