Appeal from the Order of the Pennsylvania Public Utility Commission in the case of Pennsylvania Public Utility Commission v. Trustees of Penn Central Transportation Company, Consolidated Rail Corporation, Southeastern Pennsylvania Transportation Authority, City of Philadelphia, and Department of Transportation of the Commonwealth of Pennsylvania, Investigation Docket No. 256.
Ralph J. Luongo, with him, Michael B. Tolcott, Barbara W. Mather, City Solicitor, Barbara R. Axelrod, Divisional Deputy City Solicitor, and Norman G. Prajzner, Assistant City Solicitor, for petitioner.
John J. Gallagher, Assistant Counsel, with him, John B. Wilson, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.
herbert Zohn, for intervenor, Department of Transportation.
Judges MacPhail, Barry and Palladino, sitting as a panel of three. Opinion by Judge MacPhail. Concurring Opinion by Judge Barry.
[ 91 Pa. Commw. Page 124]
The City of Philadelphia (City) appeals here from a decision of the Pennsylvania Public Utility Commission (PUC) ordering, inter alia, that upon completion of improvements to the Wissahickon Avenue-Queen Lane bridge the City must at its own expense furnish material and do all work necessary to maintain the curbs, sidewalks and parapets of the bridge and the Queen Lane approaches to the bridge. The PUC also refused to order reimbursement to the City for expenses incurred in emergency repairs to the existing bridge from 1975 through May of 1983. By the same order the PUC allocated the costs of the proposed improvements, including relocation of various
[ 91 Pa. Commw. Page 125]
public utility facilities, among the parties to the proceedings*fn1 and the public utilities to be affected by the construction.*fn2
The PUC authority in regard to construction and maintenance of railroad crossings and allocation of costs for same is found in Sections 2702 and 2704 of the Public Utility Code (Code) 66 Pa. C.S. §§ 2702 and 2704. Our review of the PUC order in question is pursuant to Section 704 of the Administrative Agency Law, 2 Pa. C.S. § 704, which limits this Court to a consideration of whether the adjudication is in accordance with the law, whether the City's constitutional rights have been violated, whether the proper administrative procedures have been followed and whether all necessary findings of fact made by the PUC are supported by substantial record evidence. The City argues that the opinion and order of the PUC are erroneous, arbitrary, against the weight of the evidence, and an abuse of discretion and violative of existing law. For the reasons stated below, we do not agree.
The City points to various sections of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. §§ 670-101 -- 670-1102 and the State Highway Act of 1961, Act of September 18, 1961, P.L. 1389, as amended, 36 P.S. §§ 1758-101 -- 1758-502, as being in conflict with the PUC's order that the City maintain the curbs, sidewalks and parapets of the
[ 91 Pa. Commw. Page 126]
bridge. This contention overlooks the fact that this Court has stated that "in case of conflict between the State Highway Law and Section 411(a) of the Public Utility Law*fn3 the latter, giving the Commission exclusive jurisdiction over highway-rail crossing proceedings, must prevail." Department of Transportation v. Pennsylvania Public Utility Commission, 21 Pa. Commonwealth Ct. 407, 412-13, 346 A.2d 371, 375 (1975) (footnote omitted).*fn4 Section 411(a) of the Public Utility Law and Section 2704(a) of the Code, 66 Pa. C.S. § 2704(a) are substantially identical. The PUC continues to have exclusive jurisdiction ...