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COMMONWEALTH PENNSYLVANIA v. PENNSYLVANIA PUBLIC UTILITY COMMISSION ET AL. (01/29/82)

decided: January 29, 1982.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION ET AL., RESPONDENTS. PHILADELPHIA SUBURBAN WATER COMPANY, INTERVENOR



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Upper Merion Township v. Philadelphia Suburban Transportation Company, Southeastern Pennsylvania Transportation Authority, Philadelphia Electric Company, Philadelphia Suburban Water Company, Department of Highways of the Commonwealth of Pennsylvania, The Bell Telephone Company of Pennsylvania and County of Montgomery, No. C. 18094.

COUNSEL

Herbert G. Zahn, Assistant Attorney General, with him Stephen Dittman, Assistant Counsel, Ward T. Williams, Chief Counsel-Transportation, Jay C. Waldman, General Counsel, and Harvey Bartle, III, Acting Attorney General, for petitioner.

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

David B. Gregor, with him Kenneth R. Myers and William N. Farran, III, of counsel: Morgan, Lewis & Bockius, for intervenor, Philadelphia Suburban Water Company.

Judges Rogers, Blatt and Craig, sitting as a panel of three. Opinion by Judge Rogers. Judge Palladino did not participate in the decision of this case.

Author: Rogers

[ 64 Pa. Commw. Page 300]

This case presents for our review one aspect of a protracted effort by Upper Merion Township, Montgomery County, Pennsylvania, to alleviate a hazardous condition created by a highway bridge spanning the railroad right-of-way of the Southeastern Pennsylvania Transportation Authority (SEPTA). Specifically, the Pennsylvania Department of Transportation (PennDOT) here challenges that portion of an order of the Pennsylvania Public Utility Commission, entered January 3, 1980, requiring PennDOT to reimburse

[ 64 Pa. Commw. Page 301]

    the Philadelphia Suburban Water Co. for sixty per cent of the cost that utility will incur in the relocation of its facilities made necessary by a highway project proposed by PennDOT as a solution to the hazard created by the bridge.

The relevant facts are undisputed. In April, 1965, Upper Merion Township filed a complaint with the Commission naming as respondents, among others, SEPTA's corporate predecessor -- the Philadelphia Suburban Transit Company, the Commonwealth Department of Highways (now PennDOT) and the Suburban Water Company and alleging the existence of a "condition . . . dangerous to the travelling public" at the location where State Highway Route 201 (also known as Old Gulph Road) crosses the railroad right-of-way then owned by the Philadelphia Suburban Transit Company by means of a forty foot long single span bridge constructed in 1911. A hearing was held at which the township's manager and engineer testified that the orientation of the bridge at an oblique angle to its highway approaches in combination with abrupt changes in grade and the narrow width of the bridge created limited visibility and continuing danger to motorists. The Department of Highway's grade crossing engineer agreed that the existing crossing was inadequate for the safety and convenience of the public, suggested that an engineering study be made to determine the most practical method of correcting the dangerous condition and requested nine months time to conduct such a study if the department was so ordered by the Commission.

In March, 1966, the Commission ordered the Department of Highways to prepare and submit, within nine months, plans and cost estimates for the reconstruction of the crossing. The department subsequently sought and was granted an extension of time for the preparation of the plans and in March, 1968,

[ 64 Pa. Commw. Page 302]

    submitted preliminary plans for certain reconstruction work to be performed on the bridge as well as a sketch plan for the possible relocation of Route 201 so as to permit all but local traffic to by-pass the bridge. By letter addressed to the department the township expressed its opinion that the highway relocation plan was the most satisfactory solution for the long term and that the township was willing to endure additional delay in alleviating the dangerous condition if such delay eventuated in the highway relocation. Thereafter, on August 23, 1971, the Commission, after noting that three years had elapsed following the submission of the highway relocation sketch without further progress with the project and that "[d]uring this time the township has displayed an extraordinary degree of patience and toleration in coping with the problems encountered with a bridge structure and highway approaches grossly inadequate to accommodate the essential needs of its people," ordered the department to take certain specified immediate action with respect to the maintenance of the bridge and to submit, along with SEPTA, a plan for the widening and strengthening of the bridge structure.

In October and November, 1971, hearings were held at which SEPTA's expert witness described various methods for the refurbishing of the bridge and ventured his opinion as to the relative feasibility of these methods concluding that the most feasible approach involved a decrease in the bridge's effective span accomplished by the structural addition at midspan of a cross beam and supporting beams attached to the existing abutments. Mr. Milton H. Davis, an assistant grade crossing engineer employed by the Department of Transportation, testified that the department had prepared no plans or cost estimates with respect to strengthening or widening the existing bridge structure and was unwilling to perform any work on the

[ 64 Pa. Commw. Page 303]

    bridge (other than to adjust the highway approaches in order to accommodate reconstruction work done by others) but that instead:

[t]he department prefers to complete the design of the proposed relocation and improvement of Legislative Route 201 . . . The alignment of the main line of said relocation would by-pass crossing SEPTA's tracks.

The Commission responded, in May, 1972, by ordering inter alia that the department proceed with the relocation of Route 201 "in order to re-route a major portion of the highway traffic and by-pass the existing crossing therewith, generally in accordance with [the department's plan submission]." In addition, the Commission ordered SEPTA to prepare complete construction plans for the refurbishing and strengthening of the existing bridge in accordance with the method considered to be most feasible by SEPTA's expert in testimony adduced at the October 21, 1971, hearing and "at [SEPTA's] initial cost and expense, furnish all material and do all work necessary to alter the bridge structure, in accordance with the approved plan." The Commission reasoned:

We are of the opinion that the existing bridge, presently posted for a load limit not exceeding 12 tons, is inadequate in its physical dimensions and structural capacity to accommodate safely the class of vehicular traffic normally using the highway at this location, and that the preliminary drawings prepared by the department, for relocation of State Highway Route 201 so as to bypass the crossing, are reasonable, of sound engineering principle, and generally acceptable to all parties in interest.

With regard to the facilities of public utilities other than SEPTA affected by the ordered construction ...


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