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FAXON COMPANY AND FAXON LUMBER COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION ET AL. (09/23/80)

decided: September 23, 1980.

FAXON COMPANY AND THE FAXON LUMBER COMPANY, PETITIONERS
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION ET AL., RESPONDENTS



Appeal from the Order of the Pennsylvania Public Utility Commission in case of In re: Application of the Department of Transportation of the Commonwealth of Pennsylvania for approval of (1) the construction of the crossing where State Highway Route 1073 (Williamsport Beltway), constructed as proposed, will cross above the grade of a track, constructed as proposed, of Consolidated Railroad Corporation, (2) the construction of the crossing, at grade, where Service Road No. 3, constructed as proposed, will cross a track of said Corporation (formerly Reading Company), (3) the construction of the crossing, at grade, where said Service Road will cross a track of said Corporation (formerly Reading Company), (4) the alteration of the crossing, at grade, where Township Road 496 crosses tracks of said Corporation (formerly Penn Central Transportation Company), all in Loyalsock Township, (5) the abolition of the crossing where Third Street crosses below the grade of a track of said Corporation (formerly Penn Central), in the City of Williamsport, (6) the abolition of the crossing, at grade, where Chestnut Street crosses tracks of said Corporation (formerly Reading Company) in said City, (7) the abolition of the crossing, at grade, where Chestnut Street crosses a track of said Corporation (formerly Penn Central), in said City, (8) the abolition of the crossing, at grade, where Township Road 470 (River Avenue) crosses tracks of said Corporation (formerly Reading Company) in said Township, (9) the abolition of the crossing, at grade, where Township Road 470 crosses a track of said Corporation (formerly Penn Central) in said Township, (10) the abolition of the crossing, at grade, where Township Road 480 (Millers Lane) crosses tracks of said Corporation (formerly Reading Company) in said Township, and (11) the abolition of the crossing, at grade, where Township Road 480 crosses a track of said Corporation (formerly Penn Central) in said Township, all in Lycoming County, and the allocation of the costs and expenses incident thereto. Application Docket No. 99975, 1976.

COUNSEL

John C. Youngman, Jr., Candor, Youngman, Gibson & Gault, for petitioners.

Richard S. Herskovitz, Assistant Counsel, with him Alfred N. Lowenstein, Deputy Chief Counsel, and Joseph J. Malatesta, Jr., Chief Counsel, for respondent, Pennsylvania Public Utility Commission.

Louis G. Cocheres, Assistant Attorney General, with him Ward T. Williams, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent, Pennsylvania Department of Transportation.

Judges Wilkinson, Jr., Blatt and Williams, Jr., sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 54 Pa. Commw. Page 38]

The Faxon Company and the Faxon Lumber Company (Faxon) appeal here from an order of the Pennsylvania Public Utility Commission (Commission) which permitted the Pennsylvania Department of Transportation (DOT) to modify several railroad crossings in the Williamsport area.

The controversy arises out of DOT's plan to complete the construction of State Highway Route 1073, a limited access highway familiarly known as the Williamsport beltway, and, as a part of that plan, to alter

[ 54 Pa. Commw. Page 39]

    the route of a Consolidated Rail Corporation (Conrail) line which is adjacent to the Faxon property and from which Faxon maintains a private rail spur onto its property. DOT's original plan was to construct the highway between the Faxon property and the new railroad, and, rather than to sever Faxon's rail access to the Conrail line, DOT proposed to construct a spur from the Conrail line to the Faxon property which would pass under the highway.*fn1 The Commission found, however, that the new crossing was not necessary for the convenience and safety of the public, and it ordered that the application be amended to delete the proposed crossing. Faxon's primary argument on appeal is that the Commission's order was not based on substantial evidence, as is required by Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704. Monongahela Connecting Railroad Company v. Pennsylvania Public Utility Commission, 45 Pa. Commonwealth Ct. 164, 404 A.2d 1376 (1979).

We note initially that Section 2702(b) of the Public Utility Code, 66 Pa. C.S. § 2702(b), requires that any plan to construct, alter, relocate, suspend or abolish any public railroad crossing, must be approved by the Commission so as to "effectuate the prevention of accidents and the promotion of the safety of the public." Faxon does not contend that DOT's plan is not in the interest of the traveling public but it does contend that the abolition of its rail access to the Conrail line will have a severe adverse effect upon Faxon and, in turn, upon the economy of the entire Williamsport area.

The evidence indicates, however, that DOT's plan calls for the construction of a public railroad siding approximately ...


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