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COMMONWEALTH PENNSYLVANIA v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (12/30/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 30, 1983.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. BOROUGH OF HOMEWOOD AND BOROUGH OF BIG BEAVER, PETITIONERS V. PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT. COUNTY OF BEAVER, PETITIONER V. PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT

Appeals from the Order of the Pennsylvania Public Utility Commission in case Borough of Homewood and Borough of Big Beaver v. Penn Central Transportation Company, Department of Highways of the Commonwealth of Pennsylvania, Pennsylvania Turnpike Commission, County of Beaver and Consolidated Rail Corporation, No. C-00018925, dated March 17, 1982.

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, Department of Transportation.

David L. Gropp, for petitioners, Borough of Homewood and Borough of Big Beaver.

Eugene Morris, County Solicitor, with him Daniel M. D'Antonio, Assistant County Solicitor, for petitioner, County of Beaver.

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

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

Author: Crumlish

[ 79 Pa. Commw. Page 268]

The Pennsylvania Department of Transportation (DOT), Borough of Homewood, Borough of Big Beaver and County of Beaver appeal a Pennsylvania Public Utility Commission order assessing costs of reconstruction and future maintenance of the Homewood Viaduct. We affirm.

The Commission determined that the rail-highway crossing was to be demolished and reconstructed, with the cost of said reconstruction to be assessed as follows: 50% against Conrail; 40% against DOT; 10% against Beaver County;*fn1 minor construction costs assessed to the Pennsylvania Turnpike Commission;

[ 79 Pa. Commw. Page 269]

    and $15,000 each assessed to Homewood and Big Beaver Boroughs.*fn2 Homewood, Big Beaver and the County were to share one-third of all future maintenance costs.

On May 6, 1970, Homewood Borough, joined by Big Beaver Borough, initiated these proceedings by complaint, alleging that a rail-highway crossing*fn3 carrying an un-numbered public highway over and above three tracks of Penn Central Transportation Company (predecessor of Conrail) posed hazardous conditions to the safety of the traveling public.*fn4 The two boroughs relied on a 1921 Commission order directing the Pennsylvania Company (forerunner of the Pennsylvania Railroad Company) to construct at its own cost and expense the aforesaid above-grade viaduct to carry former State Highway Route 77 over and above said tracks and to provide a ramp to the then-active Pennsylvania station. Attendant costs of the Highway-approach relocation were allocated to the Pennsylvania Highway Department, with the costs of property damages assessed to Homewood Borough and Beaver County. In a 1922 order, the Commission directed Homewood Borough to maintain the station ramp, Highway Department to maintain the

[ 79 Pa. Commw. Page 270]

    paving across the viaduct, and the Pennsylvania Company to maintain the viaduct.

In 1950, the Public Utility Commission directed the Pennsylvania Turnpike Commission to construct and maintain a three-span extension of the viaduct to pass over the new toll highway. The roadway paving was assigned to the Highway Department.

In 1954, the Commission ordered the deteriorated ramp portion of the structure to be closed to vehicular traffic and directed the Pennsylvania Railroad Company to erect vehicular barricades at each end of the ramp, remove the existing superstructure and construct a replacement pedestrian bridge which Homewood Borough was to maintain.*fn5 However, the ordered reconstruction work was never completed.

Our Court's scope of review is limited to determine whether constitutional rights have been violated, error of law committed or findings and conclusions are unsupported by substantial evidence. Pennsylvania Electric Co. v. Pennsylvania Public Utility Commission, 53 Pa. Commonwealth Ct. 186, 417 A.2d 819 (1980).

The Commission's exclusive jurisdiction over the construction of railroad-highway crossings in the Commonwealth is set forth in Section 2702(c) of the Public Utility Code, 66 Pa. C.S. § 2702(c), as follows:

[U]pon complaint, the commission shall have exclusive power after hearing, upon notice to all parties in interest . . . to order such crossing

[ 79 Pa. Commw. Page 271]

    heretofore or hereafter constructed to be relocated or altered, or to be suspended or abolished upon such reasonable terms and conditions as shall be prescribed by the commission. . . . The commission may order the work of construction . . . [or] alteration . . . of any crossing aforesaid to be performed in whole or in part by any public utility or municipal corporation concerned or by the Commonwealth:*fn6

The Commission has exclusive authority to make determination of allocation of costs involved in providing for the safety and public use of all bridges over railroad tracks within the Commonwealth. Department of Transportation v. Public Utility Commission, 3 Pa. Commonwealth Ct. 405, 410, 283 A.2d 313, 316 (1971). The Commission has broad powers to allocate and assess costs in railroad-highway crossing cases under Section 2704(a) of the Public Utility Code, 66 Pa. C.S. § 2704(a), which states:

[C]ost of construction . . . [or] alteration . . . of such crossing . . . shall be borne and paid, as provided in this section, by the public utilities or municipal corporations concerned, or by the Commonwealth, in such proper proportions as the commission may, after due notice and hearing, determine, unless such proportions are mutually agreed upon and paid by the interested parties.*fn7

[ 79 Pa. Commw. Page 272]

It has long been established that, in apportioning costs in highway-rail crossing cases, the Commission is not limited to any fixed rate but takes all relevant factors into consideration, with the fundamental requirement being that its order be just and reasonable. Department of Transportation v. Pennsylvania Public Utility Commission, 21 Pa. Commonwealth Ct. 407, 413, 346 A.2d 371, 375 (1975). In a case such as this, our Court will not exercise its independent judgment on the record or weigh conflicting evidence. County of Chester v. Pennsylvania Public Utility Commission, 47 Pa. Commonwealth Ct. 366, 370, 408 A.2d 552, 553 (1979). Our inquiry is directed to whether there is substantial evidence to support the Commission's order as to the allocation of costs of reconstruction and the assignment of responsibility for future maintenance of the subject viaduct. Findings of fact made by the Commission which are supported by substantial evidence are conclusive and may not be disturbed on appeal. County of Chester, 47 Pa. Commonwealth Ct. at 370, 408 A.2d at 553.

DOT asserts that the 40% assessment of reconstruction (exclusive of spans over the Turnpike) is unreasonable because the findings of fact are unsupported by the record. The Commission found DOT's interest and involvement to be significant since DOT had a past and presently continuing obligation for paving maintenance under the 1921 and 1950 orders. Furthermore, DOT has a continuing responsibility for the safe passageway of the traveling public*fn8 over the Commonwealth highways*fn9 arising from its administrative

[ 79 Pa. Commw. Page 273]

    and advisory functions, Department of Transportation, 3 Pa. Commonwealth Ct. at 413, 283 A.2d at 317, and a state highway traversed the subject bridge until 1954 and the new state highway traffic has occasionally been detoured across the subject viaduct because of state highway emergencies.*fn10

DOT argues that the Commission's findings of fact are not supported by the substantial evidence because the record shows it has only a paving responsibility and not a construction responsibility according to the 1921 order directing the Pennsylvania Company to maintain the structure. Other cases illustrate that the Commission has placed a duty upon DOT to share in the reconstruction costs of such a structure built by a railroad. Department of Transportation v. Pennsylvania Public Utility Commission, 3 Pa. Commonwealth Ct. 473, 284 A.2d 155 (1971) (PennDOT ordered to pay $150,000 out of $368,000); Pennsylvania Public Utility Commission v. Department of Transportation, 21 Pa. Commonwealth Ct. 415, 346 A.2d 376 (1975) (PennDOT assessed 90% of the reconstruction costs).

Also, the governmental bodies and DOT contend that the Commission's findings of fact are not supported by the substantial evidence because the Commission failed to consider the issue of deferred maintenance.

[ 79 Pa. Commw. Page 274]

However, in the 1971 and 1974 Commission orders,*fn11 it is shown that the Commission did consider the issue of actual causation for the bridge's deterioration. The record fails to support a conclusion that the need for reconstruction is due solely to deferred maintenance. See Department of Transportation, 3 Pa. Commonwealth Ct. at 409, 283 A.2d at 315.

Homewood and Big Beaver Boroughs and Beaver County contend that the Commission's order was unreasonable and that it abused its discretion when allocating the county 10% of the reconstruction costs and $15,000 to each borough, along with assigning all three bodies one-third of the future maintenance costs. In resolving this dispute, we must decide whether the Commission order to reconstruct the bridge will result in substantial local improvement or distinct benefit for its residents. County of Chester, 47 Pa. Commonwealth Ct. at 370, 408 A.2d at 554. The record reveals that a reconstructed bridge would provide for the general good of the motorists and pedestrians, who will experience better traffic control with the reduction of traffic congestion, more efficient and safer fire, police, bus and ambulance service, and elimination of the hazard of falling bridge concrete. Because the local governments will derive

[ 79 Pa. Commw. Page 275]

    future benefits from the reconstruction, the token assessment for reconstruction and future maintenance is just and reasonable. See County of Chester; Pennsylvania Public Utility Commission v. Department of Transportation, 2 Pa. Commonwealth Ct. 144, 276 A.2d 573 (1971).*fn12 Thus, we find no abuse of discretion in the Commission's action.

Accordingly, we affirm.

Order

The order of the Pennsylvania Public Utility Commission at Docket No. C-00018925, dated March 17, 1982, is affirmed.

Disposition

Affirmed.


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