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COMMONWEALTH PENNSYLVANIA v. PENNSYLVANIA PUBLIC UTILITY COMMISSION ET AL. (08/24/83)

decided: August 24, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION ET AL., RESPONDENTS. TOWNSHIP OF NORTH HUNTINGDON, INTERVENOR



Appeal from the Order of the Pennsylvania Public Utility Commission in case of David H. Woomer v. Consolidated Rail Corporation, Department of Highways of the Commonwealth of Pennsylvania, Westmoreland County, North Huntingdon Township, National Railroad Passenger Corporation and West Penn Power Company, No. C-77100049.

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.

Thomas P. Cole, II, for intervenor.

Judges Rogers, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 76 Pa. Commw. Page 526]

The Pennsylvania Department of Transportation (DOT) petitions this court to review an order issued by the Pennsylvania Public Utility Commission (Commission) directing DOT to pay ten percent of the actual costs of: (1) preparing completed construction plans for the improvement of the western approach to the Barner Hill Road Bridge (Bridge) located in North Huntingdon Township (Township), Westmoreland County (County), and (2) providing all material and performing all work necessary to improve the western approach to the bridge. The Township, a respondent in the proceedings below, has intervened in the instant appeal. The Township requests this court to consider the reasonableness of the order of the Commission directing it to pay certain percentages of the costs incurred by Conrail and the County in making several improvements to the bridge and its approaches.

In February, 1978, David H. Woomer, filed a formal complaint against the Township, County, West

[ 76 Pa. Commw. Page 527]

Penn Power Company (West Penn), National Railroad Passenger Corporation (Amtrak), Consolidated Railroad Corporation (Conrail) and DOT. The complaint alleges that the bridge is in disrepair and is incapable of accommodating modern vehicular traffic. The complaint further avers that the bridge is the only means of ingress and egress for approximately thirteen families, including the complainant and his family; and that the western approach to the bridge cannot be safely negotiated by emergency vehicles. Thus, the complaint asserts, the welfare of the families is jeopardized by the condition of the bridge. The Barner Hill Road Bridge is an old wooden bridge built by Pennsylvania Railroad in 1903. It crosses three sets of rail tracks now owned and operated over by Conrail. The bridge carries Barner Hill Road over the three sets of rail tracks. Approximately two thousand feet to the west of the Bridge is a dead-end, and ninety-six feet to the east of the bridge Barner Hill Road intersects with state highways.

All of the respondents answered the complaint; and all but one, Conrail, moved to dismiss the action as to themselves. Conrail answered the complaint by denying that the bridge was unsafe for vehicles of the size and weight for which it was originally designed. As for the remaining respondents, the major issue focuses on the respective parties' responsibility to maintain the bridge.

The County's answer denied providing any service to the bridge; and further denied any responsibility for any alleged unsafe condition on the bridge. West Penn averred that the bridge is not serviced by it, and that it has no responsibility to provide a safe means of egress and ingress to the families living on the south side of the bridge. West Penn further pleaded that it is beyond the power and scope of its charter to provide a bridge for the convenience and service of the general

[ 76 Pa. Commw. Page 528]

    public. DOT's motion to dismiss asserted that the complaint failed to allege that the bridge crossing is on a state highway. DOT further maintained that it receives no funds with which to repair, reconstruct or maintain highways or crossings that have not been designated state highways by the legislature. Amtrak's answer alleged that it does not own any of the rail track existing below the bridge, and that it has no service interest in the bridge. Amtrak also stated that the line of rail is operated by Conrail under contract. Amtrak, therefore requested that the complaint, as against it, be dismissed. The Township's motion to dismiss contended that it has never maintained the bridge and that it has no funds at its disposal to use to repair, ...


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