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PITTSBURGH & LAKE ERIE RAILROAD COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (05/26/82)

decided: May 26, 1982.

THE PITTSBURGH & LAKE ERIE RAILROAD COMPANY, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. COUNTY OF FAYETTE, PETITIONER V. PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION ET AL., INTERVENORS



Appeals from the Order of the Pennsylvania Public Utility Commission in the case of Investigation upon the Commission's own motion into the matters relating to the structural adequacy and load-carrying capacity of the bridge carrying State Highway Route No. 26191 over and above the grade of tracks of the Pittsburgh and Lake Erie Railroad Company in the Township of Perry, Fayette County, as pertains to the proper service, accomodation, convenience and safety of the travelling public utilizing same, No. I-77110278.

COUNSEL

Richard A. Porach, for petitioner, The Pittsburgh & Lake Erie Railroad Company.

Philip T. Warman, for petitioner, County of Fayette.

John J. Gallagher, Assistant Counsel, with him Alfred N. Lowenstein, Deputy Chief Counsel, and Joseph J. Malatesta, Jr., Chief Counsel, for respondent.

George D. Wenick, Associate Counsel, with him Jordan S. Weltman, Eckert, Seamans, Cherin and Mellott, for intervenors.

President Judge Crumlish and Judges Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Blatt. Judge Mencer did not participate in the decision in this case. Judge Palladino did not participate in the decision in this case. Concurring and Dissenting Opinion by President Judge Crumlish, Jr.

Author: Blatt

[ 66 Pa. Commw. Page 611]

The Pittsburgh & Lake Erie Railroad Company (P&LE) and the County of Fayette (Fayette) have separately appealed a Public Utility Commission (PUC) final order imposing certain bridge rehabilitation costs upon them. We affirm*fn1 the PUC order in each case.

Layton Bridge, in Perry Township, Fayette County, carries State Highway Route 26191 over P&LE's single track right-of-way and the Youghiogheny River, and the Pennsylvania Department of Transportation (DOT) has maintained the bridge under legislative mandate*fn2 and a 1969 PUC order. Because of the deterioration of the bridge's wooden deck, the PUC

[ 66 Pa. Commw. Page 612]

    directed an immediate weight limit reduction and instituted a further investigation. It then ordered DOT to prepare plans and cost estimates for the construction of a new wooden deck, at an estimated project cost of $489,934,*fn3 of which $26,322 was attributable to the rehabilitation of that part of the bridge which spanned the railroad tracks. The PUC directed DOT initially to perform all rehabilitative work and it also ordered P&LE, upon completion, to reimburse DOT for 50% of the actual cost attributable to the rehabilitation of the railroad span. The PUC order likewise directed Fayette to reimburse DOT for 10% of the total cost of repairing the bridge.

In its appeal, P&LE argues that a 1969 order of the PUC which gave DOT responsibility for maintaining the bridge cannot now be altered to allocate a portion of the rehabilitative costs to another party without a showing of a change in conditions or circumstances.

Our review must be limited, of course, to determining whether or not constitutional rights have been violated, an error of law has been committed, or the Commission's findings and order are supported by substantial evidence. Fairview Water Co. v. Pennsylvania Public ...


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