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DEPARTMENT TRANSPORTATION v. P.U.C. AND PITTSBURG & SHAWMUT RAILROAD COMPANY (11/05/71)

decided: November 5, 1971.

DEPARTMENT OF TRANSPORTATION
v.
P.U.C. AND THE PITTSBURG & SHAWMUT RAILROAD COMPANY



Appeal from the Order of the Pennsylvania Public Utility Commission at Complaint Docket No. 18923 in case of Pennsylvania Public Utility Commission v. Department of Highways of the Commonwealth of Pennsylvania, Township of Mahoning, County of Armstrong and The Pittsburg and Shawmut Railroad Company.

COUNSEL

William E. Bethards, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and J. Shane Creamer, Attorney General, for appellant.

Alan R. Squires, Assistant Counsel, with him Edward Munce, Acting Counsel and Thomas C. Dick, Assistant Counsel, for appellee, P.U.C.

Matthew A. Crawford, with him Thomas D. Stauffer, for intervening appellee, The Pittsburg & Shawmut Railroad Company.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Kramer. Concurring and Dissenting Opinion by Judge Manderino. Dissenting Opinion by President Judge Bowman. Judge Crumlish joins in this dissent.

Author: Kramer

[ 3 Pa. Commw. Page 406]

This is an appeal from an Order of the Pennsylvania Public Utility Commission (PUC) dated September 7, 1970, and a denial (February 10, 1971) of a motion for modification of said order, in which it was generally ordered, inter alia, (1) that the Pennsylvania Department of Transportation (PENNDOT) post and maintain on each approach to the crossing a 12-ton limit sign; (2) that PENNDOT make repairs as may be necessary to make the existing bridge safe for a 12-ton limit; (3) that PENNDOT, at its initial cost and expense, conduct an engineering study and investigation

[ 3 Pa. Commw. Page 407]

    of the existing bridge and its highway approaches, and prepare and submit a preliminary design, plan and estimate for a new bridge to replace the present structure; (4) that there be scheduled further hearings to consider the plans and estimates to be submitted and for the allocation of the investigation, preparation, construction and maintenance costs; and (5) that 20 per cent of the cost of making the necessary repairs and replacements to insure the bridge's 12-ton limit capacity be reimbursed to PENNDOT by the Pittsburg & Shawmut Railroad Company (Railroad).

This matter had its beginning during 1968, when, as a result of a bridge tragedy in West Virginia, the PUC, in accordance with its statutory authority, at Investigation Docket No. 97, instituted an investigation into the safety of all bridges over and under railroad tracks in the Commonwealth. As a result of this general investigation, on May 4, 1970, the PUC initiated a specific investigation concerning the bridge in question, which is located in Mahoning Township, Armstrong County, and which carries traffic on Routes Nos. 66 and 28, over the one set of railroad tracks of the Railroad.

The bridge is a reinforced concrete structure which the Railroad was ordered to build in 1919 by an order of the PUC. The construction of the bridge was completed in 1922. The record clearly shows that, from the beginning, the Railroad was ordered by the PUC to maintain the bridge and PENNDOT (formerly known as the Department of Highways) was ordered to maintain the approaches to the bridge.

As part of the procedure adopted by the PUC in this case, all interested parties, including the county and township wherein the bridge is located, were directed to answer certain interrogatories set forth in the May 4, 1970 Order. In view of the fact that the main

[ 3 Pa. Commw. Page 408]

    point of contention raised by PENNDOT is its claim that it should not be held to provide repairs or construction to correct "past due or deferred maintenance", vis-a-vis current maintenance, we point out PENNDOT's answer to the following PUC interrogatory:

"Interrogatory No. (a). 'Does the prevention of accidents and promotion of the safety of the public require changes in the type, location, reconstruction, maintenance, or abolition of the existing crossing, above grade, and the highway approaches thereto?'"

PENNDOT's answer to that interrogatory reads:

"The prevention of accidents and promotion of the public safety does not require changes in the type, location, reconstruction, maintenance, or abolition of the existing crossing, above grade and the highway approaches thereto. There is some concrete deterioration at several areas on the bridge, but said ...


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