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PENNSYLVANIA PUBLIC UTILITY COMMISSION v. COMMONWEALTH PENNSYLVANIA (10/24/75)

decided: October 24, 1975.

PENNSYLVANIA PUBLIC UTILITY COMMISSION, APPELLEE,
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, APPELLANT. THE PITTSBURG & SHAWMUT RAILROAD CO., INTERVENING APPELLEE



Appeal from the Order of the Pennsylvania Public Utility Commission 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 & Shawmut Railroad Company, No. 18923.

COUNSEL

Louis G. Cocheres, Assistant Attorney General, with him Herbert G. Zahn, Assistant Attorney General, and Robert W. Cunliffe, Deputy Attorney General, for appellant.

R. Knickerbocker Smith, Jr., Assistant Counsel, with him Edward J. Morris, Counsel, for appellee.

Thomas D. Stauffer, for intervening appellee.

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

Author: Rogers

[ 21 Pa. Commw. Page 416]

This is an appeal from a final order of the Pennsylvania Public Utility Commission (Commission) allocating the costs of the repairs and restoration of a bridge structure carrying State Highway Route 66 over and above the tracks of The Pittsburg & Shawmut Railroad Co. in Mahoning Township, Armstrong County, and directing the Pennsylvania Department of Transportation

[ 21 Pa. Commw. Page 417]

(Department) to perform maintenance on the crossing and its approaches in the future. The Commission directed the Department to reconstruct the bridge at the Department's estimated cost of about $230,000, and ordered each, the Pittsburg & Shawmut Railroad Co. and the County of Armstrong, to reimburse the Department in the amount of $12,000.

Since this is the third time this matter has been before us, only a brief history is needed. The Commission initiated an investigation of the Bridge in 1970. After hearings, it ordered the Department to make repairs necessary to make the bridge safe for a 12 ton limit, ordered the Railroad Company to pay 20% of the cost of the work, and further directed the Department at its initial cost to submit preliminary plans and estimate for a new bridge. The Department appealed and we affirmed the Commission's order in Department of Transportation v. P.U.C. and The Pittsburgh & Shawmut Railroad Co., 3 Pa. Commonwealth Ct. 405, 283 A.2d 313 (1971). Further Commission hearings were conducted at which the Department produced four alternatives for improving the crossing: (1) a relocation of the bridge at an estimated cost of more than $1,000,000, (2) the replacement of the bridge at its existing location at an estimated cost in excess of $500,000, (3) the repair and widening of the existing arch at an estimated cost of $214,000, and (4) a proposal to make repairs to the existing structure estimated to cost about $169,000. The fourth proposal, that of providing repairs without change of the existing structure, provided for no increase of roadway width on the structure and would not result in a lifting for the future of the 12 ton posting limit. The Department recommended, and the Commission ordered, that the Department do the work called for in its third alternative which would increase the roadway width from 23 feet 3 inches to 27 feet 3 inches and permit the lifting of the 12 ton limit. The Department appealed

[ 21 Pa. Commw. Page 418]

    the Commission's order, however, disputing the allocation to the Commonwealth of about 90% of cost and the imposition on the Commonwealth of the duty of future maintenance. After argument we vacated the order and remanded the case to the Commission for specific findings. P.U.C. v. Commonwealth of Pennsylvania Department of Transportation, 18 Pa. Commonwealth Ct. 165, 335 A.2d 541 (1975). The Commission thereafter made specific findings and reissued its order. The Department has again appealed.

Although the Department's brief divides its argument into five asserted questions, its brief presents only two real issues; the first is the Department's assertion that Section 411(a) of the Public Utility Law, Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. ยง 1181(a) is unconstitutional, and the second is the Department's contention that the record does not support the Commission's allocation to the Commonwealth of 90% of ...


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