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COMMONWEALTH PENNSYLVANIA v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (01/21/82)

decided: January 21, 1982.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, ET AL., RESPONDENTS



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.

COUNSEL

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 ...


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