Original Jurisdiction in case of Pennsylvania Public Utility Commission v. Norfolk and Western Railway Company.
Terrance J. Fitzpatrick, Assistant Counsel, with him Barry J. Grossman, Assistant Counsel, Charles F. Hoffman and Joseph J. Malatesta, Jr., Chief Counsels, and Alfred N. Lowenstein, Deputy Chief Counsel, for plaintiff.
H. Woodruff Turner, with him Alexander C. Black, Kirkpatrick, Lockhart, Johnson & Hutchison, and Henry D. Light, Assistant General Counsel, for defendant.
Thomas P. Shearer, for intervening party plaintiff.
Judges Blatt, MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.
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On February 3, 1981, the Public Utility Commission (PUC) filed a complaint in mandamus, addressed to our original jurisdiction, seeking enforcement of a 1977 PUC order which directed the Norfolk and Western
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Railway Company (N & W) to discontinue the operation of any of its locomotives in Pennsylvania which were not equipped with "a flush type toilet or similar device" as required by 52 Pa. Code § 33.62.*fn1 Following a non-jury trial, our Court per Senior Judge Kalish, granted the mandamus relief requested. N & W's exceptions to the trial judge's decision are presently before us for disposition.
In order to provide some perspective to the instant proceedings, we note that the PUC order here sought to be enforced was the result of a complaint instituted in 1976 by the Pennsylvania State Legislative Board, United Transportation Union (UTU)*fn2 alleging that the N & W Sanitary Toilet System (N & W System)*fn3 does not comply with 52 Pa. Code § 33.62. Following a public hearing the PUC determined that the N & W
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System "does not sanitarily dispose of human waste matter within the meaning of 52 Pa. Code § 33.62" and ordered prompt compliance with its regulations. The PUC's order of July 6, 1977, which was appealed by N & W, was ultimately affirmed by our Supreme Court in Norfolk & Western Railway Co. v. Pennsylvania Public Utility Commission, 489 Pa. 109, 413 A.2d 1037 (1980), rev'g 41 Pa. Commonwealth Ct. 634, 399 A.2d 1184 (1979).
The PUC instituted the present enforcement action based on its belief that N & W has failed to bring its locomotives into compliance with 52 Pa. Code § 33.62. Several pre-trial rulings were made subsequent to the filing of the complaint*fn4 including one which granted the PUC's motion to limit the scope of evidence at trial so as to restrict evidence which might establish that operational difficulties with the N & W System have been corrected rendering the N & W System sanitary and in compliance with 52 Pa. Code § 33.62. The PUC took the position that its 1977 order requires that the N & W ...