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ERIE LACKAWANNA RAILWAY COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (06/01/71)

decided: June 1, 1971.

ERIE LACKAWANNA RAILWAY COMPANY
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION



Appeal to the Superior Court of Pennsylvania from the order of the Pennsylvania Public Utility Commission entered at Application Docket No. 95293. Appeal transferred December 14, 1970, to the Commonwealth Court of Pennsylvania.

COUNSEL

Cody H. Brooks, with him Warren, Hill, Henkelman & McMenamin, for appellant.

Dominic J. Ferraro, Assistant Counsel, with him Edward Munce, Acting Counsel, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Rogers. Dissenting Opinion by Judge Manderino.

Author: Rogers

[ 2 Pa. Commw. Page 397]

This is an appeal from an order of the Public Utility Commission allocating the costs of abolishing eighteen rail-highway crossings. The appellant, Erie Lackawanna Railway Company, contends that the Commission's

[ 2 Pa. Commw. Page 398]

    order is erroneous in two respects: first, in imposing on it the cost of relocating the facilities of other utilities and of establishing and maintaining necessary detours at all of the crossings, and second, in imposing on it the full cost of abolishing three of the four crossings which are not at grade.

By order of the Interstate Commerce Commission, the Railway Company was authorized to abandon a portion of its line of railway in Lackawanna and Wayne Counties. The portion of line in question crossed fourteen public highways at grade, two above grade and two below grade. The Railway Company applied to the Public Utility Commission for approval of the abolition of these crossings. At the P.U.C. hearings, the Railway Company agreed to pay the cost involved in the grade crossing removals and restoration. As to one of the non-grade crossings, the Department of Transportation of the Commonwealth agreed to perform the work required to abolish the crossing at an expense of about $100,000 and the Railway Company agreed to contribute $40,000 toward this cost. The cost of abolishing the three remaining highway-rail separations, estimated at about $55,000, was imposed on the Railway Company. Of this total, about $50,000 related to two crossings of state highways and about $5,000 related to a small railway bridge over a township road.*fn1

The record is silent as to the cost of relocating the facilities of other utilities or of establishing and maintaining detours. Indeed, there appear to be no other utilities affected and there is evidence that at least at the grade crossings no detours will be necessary. In any case, without evidence that the facilities of other utilities were required to be relocated or that detours

[ 2 Pa. Commw. Page 399]

    were required to be established, and absent an estimate of cost of doing either, if necessary, we have no basis for concluding that the Commission's order was unreasonable in this regard.

As concerning the three bridges ordered abolished at the cost of appellant, we observe that the two bridges providing the crossings of state highways are owned and have been maintained by the Railway Company. We have no doubt that the Railway Company also maintained the 17-foot long bridge crossing the township road, although this fact does not appear of record. The Railway Company was also obliged to maintain the largest structure on the line, agreed to be ...


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