decided: August 14, 1985.
CITY OF PHILADELPHIA, PETITIONER
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT
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 over highway-rail crossing proceedings. We must, therefore, determine whether the PUC acted within its statutory authority in regard to the City in the instant order.
Section 2702(b) of the Code, 66 Pa. C.S. § 2702(b), provides in pertinent part that the PUC "is hereby vested with exclusive power . . . to determine and prescribe, by regulation or order, . . . the manner and conditions in or under which such [highway-rail] crossings shall be maintained, operated, and protected to effectuate the prevention of accidents and the promotion of the safety of the public." Section 2704(a) of the Code provides in pertinent part that
the cost of construction, relocation, alteration, protection, or abolition of such crossing, . . .
[ 91 Pa. Commw. Page 127]
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.
This Court has previously held that the PUC is empowered to impose and apportion the costs of maintenance of a highway-rail crossing bridge, Consolidated Rail Corp. v. Pennsylvania Public Utility Commission, 55 Pa. Commonwealth Ct. 576, 423 A.2d 1108 (1980), and that the only requirement which the PUC must meet in apportioning such costs is that the apportionment be just and reasonable. Id.
The PUC concluded in the instant case that the proposed construction of the bridge and highway approaches "is necessary for the proper service, accommodation, convenience or safety of the traveling public." Conclusion of Law 3. This conclusion is amply supported by the record.
We have reviewed the entire record and we find that it is just and reasonable to apportion the costs of maintenance of the curbs, sidewalks and parapets of the bridge to the City. The uncontested evidence shows that the bridge is heavily traveled by vehicular traffic the majority of which is intracity. Queen Lane is a City street, although Wissahickon. Avenue is a part of the State highway system. The proposed construction will restore the bridge to a higher weight limit than the three ton limit required while the bridge remains in a state of disrepair. The PUC could reasonably conclude from the record that the benefits to the City are such that the City should reasonably be required to share in the future maintenance of the bridge.
[ 91 Pa. Commw. Page 128]
Concerning the City's expenditures for emergency repairs of the bridge,*fn5 we hold that the PUC properly denied reimbursement to the City for those expenditures. As stated above, the PUC has the authority to allocate costs in regard to highway-rail crossings. The PUC did not allocate to the City any of the costs of the proposed construction other than those associated with any required relocation of the facilities of any municipal public utility. In light of the benefits to the City of the use of the bridge by the traveling public during the years when the City performed emergency repairs and the comparatively small sum expended by the City for those repairs, the PUC acted justly and reasonably.
Finding no merit to the City's contentions we affirm the order of the PUC.
The order of the Pennsylvania Public Utility Commission dated April 24, 1984, No. I.D. 256, is hereby affirmed.
Concurring Opinion by Judge Barry:
I agree that the excellent opinion of Judge MacPhail states the law as the courts have interpreted it. I must point out, for possible legislative consideration, my belief that the law is unfair. The PUC has the power to allocate the costs of highway-rail crossings, not on the basis of ownership of the facilities, but on its own judgment of benefits to any affected party. It would be difficult in most cases for a municipality in which the improvement takes place (in this
[ 91 Pa. Commw. Page 129]
case the City of Philadelphia) to deny a benefit to its citizens. I believe the result is unfair to the citizens of that municipality who have not contracted for the improvement nor had any input into the means or policy involved.