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BALTIMORE AND OHIO RAILROAD COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (10/04/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: October 4, 1983.

THE BALTIMORE AND OHIO RAILROAD COMPANY, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT

Appeal from the Order of the Pennsylvania Public Utility Commission in case of Application of Upper Chichester Township to alter a crossing, at grade, where Carpenter Road crosses the tracks of the Baltimore & Ohio Railroad Company, No. A.102036, dated October 28, 1981.

COUNSEL

David P. Helwig, with him Gary F. Sharlock, Sharlock, Repcheck, Engel & Maher, for petitioner.

Richard S. Herskovitz, Assistant Counsel, with him John B. Wilson, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.

President Judge Crumlish, Jr. and Judges Williams, Jr. and Doyle, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 77 Pa. Commw. Page 382]

Before this Court are a petition for review by The Baltimore and Ohio Roalroad Company (B & O) from a decision and order of the Public Utility Commission (PUC) and a motion to quash said petition by the PUC.

[ 77 Pa. Commw. Page 383]

On July 14, 1981, the PUC entered a decision and order approving an application filed by Upper Chichester Township to alter a crossing where Carpenter Road intersects the B & O's tracks. The order required, inter alia, B & O to bear both fifty percent of the cost of widening the crossing and fifty percent of any costs incurred by Bell Telephone Co. and Philadelphia Electric Co. as a result of the proposed alteration. No appeal was taken by B & O from this order. On July 27, 1981, however, B & O petitioned the PUC, pursuant to 52 Pa. Code ยง 3.291,*fn1 to modify its July 14 order so as to relieve B & O of the imposed costs.*fn2 This petition was denied by the PUC on October 28, 1981 on the grounds that B & O had presented no law or evidence new to what had been considered in the formulation of the July 14 order. B & O subsequently filed the instant petition for review in this Court in which it challenges both the July 14, 1981 and October 28, 1981 orders of the PUC. The PUC, in turn, filed the motion which is also before us at this time, in which it seeks to quash B & O's petition for review as being untimely with respect to the July 14, 1981 order and insufficient as to the October 28, 1981 order on the grounds that it incorporates the wrong scope of review.

With respect to the timeliness of those aspects of B & O's petition for review filed November 27, 1981, which challenge the substance of the July 14, 1981 order of the PUC, it is well settled that a request for modification to the PUC does not toll the running of

[ 77 Pa. Commw. Page 384]

    the thirty day period for filing an appeal. Abramson v. Public Utility Commission, 489 Pa. 267, 414 A.2d 60 (1980); Mobilfone, Inc. v. Pennsylvania Public Utility Commission, 24 Pa. Commonwealth Ct. 243, 355 A.2d 611 (1976).*fn3 See also Westinghouse Electric Corp. v. Pennsylvania Public Utility Commission, 44 Pa. Commonwealth Ct. 407, 404 A.2d 712 (1979); Pa. R.A.P. 1701(b). B & O has conceded as much in its brief to this Court. Accordingly, we grant the PUC's motion to quash insofar as it pertains to an appeal from the order of July 14, 1981.

As for the order of October 28, 1981, this Court's scope of review of a refusal to modify an order by the PUC is to determine whether the PUC has committed an abuse of discretion by so refusing. Borough of Platea v. Pennsylvania Public Utility Commission, 14 Pa. Commonwealth Ct. 478, 322 A.2d 780 (1974). While the B & O's petition for review herein does not specifically state as much, and is instead couched primarily in terms challenging the order of July 14, 1981 as being unsupported by substantial evidence, we do not find it to be so wholly deficient as to warrant quashing that aspect which pertains to the October 28, 1981 order. The essential elements of a petition for review as set forth in Pa. R.A.P. 1513, i.e. a statement of jurisdiction, identification of the parties including the government unit making the decision for which review is sought, reference to the appropriate order (that of October 28, 1981) and a general statement

[ 77 Pa. Commw. Page 385]

    of objections (including that there was an abuse of discretion by the PUC), are present. We therefore deny the PUC's motion to quash insofar as it applies to the B & O's appeal from the October 28, 1981 refusal to modify.

Having denied the PUC's motion to quash as to the appeal from the order of October 28, 1981, we are confronted with the merits of that appeal. B & O asserts that, in rendering our decision as to whether the PUC abused its discretion in its refusal to modify, we must focus on the merits of the order of July 14. We disagree. To proceed as B & O would have us would be to permit a collateral attack on the merits of a final and otherwise unappealable order with the only effective difference being the scope of review employed by this Court.*fn4 B & O would in, essence, have effectively circumvented the time limits for bringing an appeal from the July 14, 1981 order. This would clearly be improper. See Brinks, Inc. v. Pennsylvania Public Utility Commission, 16 Pa. Commonwealth Ct. 300, 328 A.2d 582 (1974); Borough of Platea. Instead, we must focus on why modification was denied. In the instant matter it was because B & O did not indicate in its petition for modification any new evidence or changed circumstances or present any previously unconsidered law for the PUC's consideration. Our review of the record confirms the PUC's assessment of the B & O's request. Accordingly, as a hearing was held prior to entry of the July 14, 1981 order and as B & O was given every opportunity to present its case at that time, we do not find any abuse of discretion was committed in the PUC's

[ 77 Pa. Commw. Page 386]

    denial of B & O's modification request. See Brinks, Inc.; Borough of Platea.

Order

Now, October 4, 1983, the Pennsylvania Public Utility Commission's motion to quash the petition for review in the above captioned matter of The Baltimore and Ohio Railroad Company is hereby granted in part and denied in part consistent with the opinion above. The order of the Pennsylvania Public Utility Commission, dated October 28, 1981, A.102036, denying the petition for modification by The Baltimore and Ohio Railroad Company is affirmed.

Disposition

Motion to quash granted in part and denied in part. Denial of modification affirmed.


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