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BOROUGH PLATEA v. COMMONWEALTH PENNSYLVANIA (07/26/74)

decided: July 26, 1974.

BOROUGH OF PLATEA, APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEE, AND BESSEMER AND LAKE ERIE RAILROAD COMPANY, INTERVENING APPELLEE



Appeal from the Order of the Pennsylvania Public Utility Commission in case of In Re: Borough of Platea v. Pennsylvania Public Utility Commission, No. C-19458.

COUNSEL

Andrew J. Conner, with him Dunn & Conner, for appellant.

Philip R. Mann, Assistant Counsel, with him Edward Munce, Acting Counsel, for appellee.

David McNeil Olds, with him Eugene K. Connors and Reed, Smith, Shaw & McClay, for intervening appellee.

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

Author: Blatt

[ 14 Pa. Commw. Page 480]

This is an appeal by the Borough of Platea (Borough) from an order of the Pennsylvania Public Utility Commission (P.U.C.) which denied the Borough's request for a rehearing and/or rescission or amendment of an order made by the P.U.C. on January 2, 1973. The controversy began when the Bessemer and Lake Erie Railroad Company (Railroad), who have been permitted to intervene in this appeal, informed the P.U.C. by telegram on January 7, 1972 that a sudden failure of the substructure supporting the deck and backwall of a bridge carrying Peach Street over the Railroad track in the Borough necessitated the closing of the bridge to all vehicular traffic. The P.U.C., on that same date, telegraphed an order requiring the Borough to post and maintain detours so as to close off the bridge to traffic.

On January 10, 1972, the P.U.C. ratified its telegram order of January 7, 1972 and further directed that an investigation be conducted to determine the condition of the bridge, the nature and extent of required alterations, if any, and if such is or are required, the parties who should perform the work, bear the cost and thereafter maintain the bridge. The Borough answered that the Railroad had a duty to maintain the bridge and that the present condition of the bridge was due to the Railroad's previous failure in this regard. It also contended that the bridge route is essential for the residents of the Borough and that the Railroad should be responsible for repair or replacement of the bridge.

After hearings, the P.U.C. found that "the existing timber structure carrying Peach Street," i.e., the bridge,

[ 14 Pa. Commw. Page 481]

    was structurally inadequate and unsafe for highway traffic. Furthermore, it found that a satisfactory nearby alternate route could be used without difficulty. It, therefore, ordered the Railroad to remove the bridge before March 31, 1973, to install and maintain permanent barricades at its own expense, and to "pay all compensation for damages, if any, due to the owners for property taken, injured or destroyed by reason of the abolition. . . ."

The Borough timely petitioned for a rehearing and/or rescission or amendment of the order, but its request was denied on April 10, 1972, and that denial is now the subject of this appeal.*fn1 In its petition filed in support of this appeal, as required by Section 1101 of the Public Utility Law, Act of May 28, 1937, P.L. 1053, as amended, 60 P.S. ยง 1431, the Borough alleges that the P.U.C. acted arbitrarily in refusing to conduct a rehearing and/or accept additional evidence which might bear on the P.U.C. findings and require modification of the order. The Borough alleges that the P.U.C. erred in not finding the following: (a) that the bridge's condition resulted from the Railroad's failure to maintain it properly; (b) that the bridge was an important and vital factor to the well-being of the Borough and its citizens; and (c) that the alternate route is inadequate to handle the new volume of traffic and its use constitutes a threat to the health, safety and welfare of the Borough citizens.

As we said in Department of Transportation v. Pennsylvania Public Utility Commission, 3 Pa. ...


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