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COUNTY CHESTER v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (11/19/79)

decided: November 19, 1979.

COUNTY OF CHESTER, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



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, City of Coatesville, County of Chester, Penn Central Transportation Company and National Railroad Passenger Corporation, Complaint Docket No. 18838.

COUNSEL

Norman J. Pine, Assistant County Solicitor, with him John S. Halsted, County Solicitor, for petitioner.

Richard S. Herskovitz, with him Harvey S. Miller, Assistant Counsel, John B. Wilson, Assistant Counsel, and George M. Kashi, Chief Counsel, for respondent.

President Judge Bowman and Judges Wilkinson, Jr., Blatt, DiSalle, Craig and MacPhail. Judges Crumlish, Jr. and Mencer did not participate. Judge Rogers disqualified himself. Opinion by Judge MacPhail.

Author: Macphail

[ 47 Pa. Commw. Page 367]

The County of Chester (County) appeals to this Court from a decision of the Pennsylvania Public Utility Commission (PUC) ordering the reconstruction of a bridge/railroad overpass in the City of Coatesville (City), finding the County to be "interested" and "concerned" with the crossing, and further ordering the County to contribute 25 per cent of the total cost of material and labor used in reconstructing the bridge.*fn1 On appeal, the County alleges that the

[ 47 Pa. Commw. Page 368]

PUC lacked the legal authority to determine that it was a "concerned" party and to allocate costs against it because the bridge's only connection with the County was its location*fn2 and that even if the PUC did have such authority, such allocation on the facts of this case constitutes an abuse of discretion. For the reasons which follow, we affirm the PUC's order.

Section 409 of the Public Utility Law (Law), Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. § 1179(c)*fn3 provided that:

[ 47 Pa. Commw. Page 369]

Upon its own motion or upon complaint, the commission shall have exclusive power after Page 369} hearing, upon notice to all parties in interest, including the owners of adjacent property, to order any such crossing heretofore or hereafter constructed to be relocated or altered, or to be abolished upon such reasonable terms and conditions as shall be prescribed by the commission. . . . The commission may order the work of construction, relocation, alteration, protection, or abolition of any crossing aforesaid to be performed in whole or in part by any public utility or municipal corporation concerned or by the Commonwealth. (Emphasis added.)

Section 411 of the Law, 66 P.S. § 1181(a)*fn4 provided that:

[T]he expense of such construction, relocation, alteration, protection, or abolition of any crossing, shall be borne and paid, . . . by the public utilities or municipal corporations concerned, or by the Commonwealth, in such proper proportions as the commission may, after due notice and hearing, determine, unless such ...


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