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COMMONWEALTH PENNSYLVANIA v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (11/22/82)

decided: November 22, 1982.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, CONSOLIDATED RAIL CORPORATION, COUNTY OF CAMBRIA, BOROUGH OF SOUTH FORK AND BOROUGH OF EHRENFELD, RESPONDENTS



Appeal from the Order of the Pennsylvania Public Utility Commission in case of Pennsylvania Public Utility Commission v. Consolidated Rail Corporation, County of Cambria, Borough of South Fork, Borough of Ehrenfeld and Department of Transportation of the Commonwealth of Pennsylvania, No. I.D. 260.

COUNSEL

Stephen Dittman, Assistant Counsel, with him Herbert G. Zahn, Assistant Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for petitioner.

John J. Gallagher, Assistant Counsel, with him John B. Wilson, Deputy Chief Counsel, and Joseph J. Malatesta, Jr., Chief Counsel, for respondents.

President Judge Crumlish, Jr. and Judges Rogers, Blatt, Craig and Doyle. Opinion by Judge Rogers.

Author: Rogers

[ 70 Pa. Commw. Page 129]

The Commonwealth of Pennsylvania, Department of Transportation (Department) seeks review of an Order of the Pennsylvania Public Utility Commission, entered March 11, 1981, allocating to the Department five per cent of the costs attributable to the repair of a bridge, constructed in the first decade of this century, located in the Borough of South Fork, Cambria County, and carrying the Borough's Grant Street over the Little Conemaugh River and a right-of-way of the Consolidated Rail Corporation.

Two issues are raised: whether the Commission is authorized to allocate to the Department costs attendant upon the repair of a highway-rail crossing where the highway intersecting the railroad right-of-way is not a "state designated" highway within the meaning of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. ยง 670 et seq., and, assuming an affirmative response to this first inquiry, whether the Commission abused its discretion in the particular scheme of allocation here ordered.

[ 70 Pa. Commw. Page 130]

The facts are undisputed. In September, 1976 Cambria County petitioned the Commission to take appropriate action with respect to the bridge which, the county alleged, was in a structurally unsound and hazardous condition of repair. On October 13, 1976, the Commission ordered an investigation of the structural adequacy and safety of the bridge. Thereafter, the Commission caused a field inspection to be performed and, following the recommendation of the consulting engineer, ordered the bridge to be closed to all vehicular traffic. A number of hearings and field conferences were then conducted by an administrative law judge. The Department's motion that it be dismissed as a party was denied and it was determined that a railroad crossing at this location is necessary, that the bridge required extensive structural repairs and painting, and that the cost of this work should be borne by the parties in the following manner:

PennDOT will be assigned a token 5% of the costs.

Conrail will be assigned 40% of the costs.

Cambria County will be assigned the remaining 55% of the costs.

PennDOT is being assigned a token 5% of the costs due to its limited involvement in the project. The proximity of one of its major highways (40 feet from the structure), certainly contributes some volume of traffic to the structure which tends to increase the maintenance burden over what might normally be expected with a local road that does not intersect with a major state highway. However, since no traffic studies have actually been made and ...


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