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decided: January 21, 1982.


Appeal from the Order of the Pennsylvania Public Utility Commission in case of Borough of North Irwin, a Municipal Corporation v. Penn Central Transportation Company, County of Westmoreland, West Penn Power Company, The Peoples Natural Gas Company, Pennsylvania Department of Transportation and Consolidated Rail Corporation, No. C-00021373, dated October 2, 1980.


Benjamin B. Wechsler, II, Assistant Counsel, with him Herbert G. Zahn, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner.

Richard S. Herskovitz, Assistant Counsel, with him Alfred N. Lowenstein, Deputy Chief Counsel, and Joseph J. Malatesta, Jr., Chief Counsel, for respondents.

President Judge Crumlish and Judges Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Craig

[ 64 Pa. Commw. Page 225]

The Pennsylvania Department of Transportation (PennDOT) petitions for review of an order by the Public Utility Commission directing it to pay $3000 to the Consolidated Rail Corporation (Conrail) as PennDOT's share of the expense of repairing a bridge in the Borough of North Irwin.

In October of 1975, the borough filed a complaint against Westmoreland County, West Penn Power Company, Peoples Natural Gas, PennDOT and Penn Central Transportation Company -- to which Conrail is the successor -- alleging that the 75-year old bridge,

[ 64 Pa. Commw. Page 226]

    which carries a borough street, Fourth Street, over the railroad tracks, was so deteriorated that a five-ton weight limit had been imposed. At hearings before the Commission, witnesses testified that the limit prevented school buses and fire equipment from crossing the bridge, which is one of two main arteries for access to the borough from Legislative Routes 639 (Traffic Route 993) and 64029. The alternative access route, which passes under a railroad crossing, had been blocked occasionally due to trucks losing their brakes on the steep hill leading to that underpass.

The Commission issued an interim order in January of 1978 directing Conrail to make bridge repairs. After hearing additional testimony following completion of the repairs, the Commission ordered PennDOT's $3000 contribution toward Conrail's total costs of $77,488.

PennDOT admits that the Commission has exclusive jurisdiction over rail-highway crossings under Section 409(c) of the Public Utility Law of 1937,*fn1 but argues that PennDOT is not a proper party to be assessed any costs under Section 411,*fn2 which provides:

[T]he expense of such construction, relocation, alteration, protection, or abolition of any crossing

[ 64 Pa. Commw. Page 227]

    shall be borne and paid, as hereinafter provided, 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. . . .

PennDOT first contends that the Commission has no power to allocate costs against it where the highway located at the crossing is not a state highway. Despite PennDOT's efforts to distinguish the case, we believe that Department of Transportation v. Public Utility Commission, 3 Pa. Commonwealth Ct. 473, 284 A.2d 155 (1971) is indistinguishable and thus controlling. As stated by Judge (now Justice) Wilkinson, the issues there raised by PennDOT, concerning a 17th Street bridge, were:

[F]irst, whether the Commission may legally allocate any of the cost of a highway-rail improvement against PennDOT where the bridge and highway passing over it are not, and never have been, a part of the State Highway system; second, whether the Commission in the instant appeal abused its discretion in allocating $150,000 of the highway-rail crossing improvement cost to the Commonwealth.

This court concluded that:

There is no limitation in this section restricting the Commission's jurisdiction over the Commonwealth to those highway-rail crossings that involve only highways that are part of the State Highway system. This section gives the Commission jurisdiction over the Commonwealth to impose costs under Section 411 regardless of the designation of the highway involved, i.e., State highway, county road, or township road.

3 Pa. Commonwealth Ct. at 476, 284 A.2d at 157.

In the present case, the Commission found that, although the road was not part of the state highway

[ 64 Pa. Commw. Page 228]

    system, it is used extensively by borough residents to get to state highways, and that the only other access into the borough is over a state highway which is blocked occasionally. The Commission therefore determined that PennDOT "has some obligation to the residents of the borough . . . to assist in providing them access to points south of the borough, [and that it should] bear a portion of the costs incurred by Conrail in making repairs to the subject bridge."

That reasoning is buttressed by the statutory mandate that PennDOT perform certain administrative and advisory functions with respect to local roads, see Sections 2005 and 2006 of the Administrative Code of 1929,*fn3 and the Commission's own regulation requiring PennDOT to be made a party respondent to a crossing complaint filed under Section 409. 52 Pa. Code § 3.361(a).

PennDOT also contends that its appropriations from the General Assembly are restricted to the construction, repair and maintenance of state designated highways only, and that the Commission's order must be subordinate to this fiscal restraint, citing Article VIII, Sections 11 and 12 of the Pennsylvania Constitution, Section 2002 of the Administrative Code,*fn4 the

[ 64 Pa. Commw. Page 229]

Liquid Fuels Tax Act,*fn5 the Fuel Use Tax Act,*fn6 as well as the terminology of current appropriation acts.

However, this court, in the 17th Street bridge case, also decided that issue, including specific consideration of the Administrative Code, 71 P.S. § 511 et seq., and the Constitution, stating:

[I]t is clear that the funds administered by PennDOT are not restricted from use with respect to the highway-rail crossing involved, but rather may not be used for private highways or bridges which situation is not before us. . . .

3 Pa. Commonwealth Ct. at 477, 284 A.2d at 158.

Although PennDOT counsel have energetically submitted new arguments, the issues here are the same as those decided in the 17th Street bridge case, and we do not have a sufficient basis on which to overrule the result we reached there.

Because the Commission's allocation of a cost share against PennDOT is supported by reading all of the statutory and constitutional provisions in pari materia, we are unable to perceive that the Commission's action usurps the power of the legislature.

Having determined that the Commission's allocation of costs against PennDOT is just and reasonable, supported by substantial record evidence and in accordance with the law, we affirm. Manchester Township v. Public Utility Commission, 43 Pa. Commonwealth Ct. 118, 401 A.2d 1237 (1971).

[ 64 Pa. Commw. Page 230]


Now, January 21, 1982, the order of the Public Utility Commission, No. 21373, dated October 7, 1980, is affirmed.

This decision was reached prior to the expiration of the term of office of Judge Palladino.



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