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AMTRAK v. PENNSYLVANIA PUC

July 1, 1987

National Railroad Passenger Corporation
v.
Commonwealth Of Pennsylvania Public Utility Commission, et al.



The opinion of the court was delivered by: NEWCOMER

Newcomer, J.

 I. Facts1

 The Commonwealth of Pennsylvania, in the exercise of its police power, has entrusted the Public Utility Commission with "broad powers in respect of the crossing of facilities of utilities and particularly of the crossing of highways and railroads." Tarentum Borough v. Pennsylvania PUC, 171 Pa. Super. 156, 160-61, 90 A.2d 853 (1952); see Pennsylvania Rr. Co. v. Pennsylvania PUC, 136 Pa. Super. 1, 7 A. 2d 86 (1939). The Public Utility Code, 66 Pa. C.S.A., contains the statutory authority for the Commission and the general structure of regulation of utilities and common carriers. Section 2702(c) of the Code *fn2" vests the PUC with exclusive authority to determine and order the manner in which railroad and highway crossings are constructed, altered, relocated or abolished, and which parties should perform the required work, bear the expenses and maintain the crossings. The PUC may appropriate real property to accomplish its orders, 66 Pa. C.S.A. § 2702(d), and determine proper compensation therefor. 66 Pa.C.S.A. § 2704(a). Such compensation, as well as the cost of construction, alteration, relocation or abolition of any crossing, are to be borne by the utility or utilities involved, the municipality or the Commonwealth of Pennsylvania, "in such proper proportion as the commission may, after due notice and hearing, determine." Id. In apportioning costs of railroad crossings, the PUC is not bound by any rigid rule, but must take all relevant factors into consideration. *fn3" Commonwealth, Department of Transportation v. Pennsylvania PUC, 79 Pa. Commw. 266, 469 A.2d 1149 (Pa. Cmwlth. 1983); Department of Transportation v. Pennsylvania PUC, 21 Pa. Commw. 407, 346 A.2d 371, 375 (Pa. Cmwlth. 1975). The only substantive criterion by which the apportionment of costs is made and reviewed is that the order must be just and reasonable. Consolidated Rail Corp. v. Pennsylvania P.U.C., 55 Pa. Commw. 576, 423 A.2d 1108 (Pa. Cmwlth. 1980). Pennsylvania P.U.C. v. Department of Transportation, 2 Pa. Commw. 144, 276 A. 2d 573 (1971). A party dissatisfied with the allocation of costs made by the PUC can seek judicial review by appealing the decision to Commonwealth Court. 66 Pa. C.S.A. § 2704(b); 42 Pa.C.S.A. § 763(a)(1).

 ALJ Fountain found that Amtrak owns and operates the rail line under the bridge. *fn4" Recommended Decision at 5. The Cassatt Avenue bridge was built in 1899-1900 by the Philadelphia Division of the Pennsylvania Railroad Co. It was maintained by Pennsylvania Railroad in the past. Amtrak, the present owner of the tracks, has not maintained the bridge on its own. Recommended Decision at 6.

 ALJ Fountain estimated that the cost of the recommended plan was $626,390, including $556,000 for construction and $70,390 for design costs. Recommended Decision at 7, Finding of Fact 4. Of that total, 80 percent would be paid by the Township, which amount would be recovered from the Commonwealth's fund established by the Billion Dollar Bridge Bill. Recommended Decision at 2, Finding of Fact 5. ALJ Fountain recommended that the remaining 20% of the cost be borne by Amtrak. Recommended Decision at 7. No portion of the costs was assigned to either SEPTA or Conrail. Under the recommended Order, Amtrak would be required to maintain the substructure of the proposed vehicular bridge, and the substructure, superstructure and stairway of the pedestrian walkway. Recommended Decision at 8. In addition, Amtrak was required to bear the "cost" of any damages resulting from diminution of its right of way by the construction project. Id.

 Following the issuance of the Recommended Decision, Amtrak filed an Exception with the Commission. In its brief, Amtrak argued that the Commission lacked the authority to order Amtrak to pay construction costs. Amtrak's argument was premised upon 45 U.S.C. § 546b, the same statute upon which the instant suit is grounded. *fn5" On May 30, 1986, with certain changes not relevant here, the PUC adopted the Recommended Decision, and ordered that its terms be given effect. The PUC did not address Amtrak's legal argument, rejecting it sub silentio. Amtrak did not appeal to the Commonwealth Court, instead filing the instant action to challenge the legality of the Commission's order.

 II. Amtrak's Tax Exemption

 Amtrak was established in 1971 as a "for-profit" corporation. 45 U.S.C. § 541. Although Congress envisioned that Amtrak eventually would become independent of federal financial support, it soon became apparent that such would not be the case. By 1980, Congress began studying ways to reduce federal outlays to Amtrak. It passed legislation requiring Amtrak to recover at least one-half of its operating costs from revenues, 45 U.S.C. 564(c)(4)(A), to eliminate any deficit resulting from the on-board sale of food and beverages, 45 U.S.C. § 546(n), and to restructure its routes, 45 U.S.C. § 545(f). See generally H. Rpt. 97-81, 97th Cong., 1st Sess. (1981); S.Rpt. 253, 97th Cong., 1st Sess. (1981).

 On September 10, 1982, Congress enacted Public Law 97-257, granting Amtrak an exemption from all state and local taxes after October 1, 1981. The statute provides:

 96 Stat. 852 (1982), codified at 45 U.S.C. § 546b. *fn6" The rationale for the exemption was set forth in the Senate Appropriations Committee Report:

 
It is generally recognized that State and local taxes on a primarily Federal investment are inappropriate. Moreover, such taxation serves to erode the revenue-to-cost ratios which impact on whether states and localities continue to receive the benefit of Amtrak service. The Committee believes it is unreasonable for Federal funds to be granted to Amtrak to provide a tax windfall to States and localities, and consequently the bill prohibits Amtrak from using any appropriated funds or assets for the payment of any State and local taxes.

 S.Rept. No. 353, 97th Cong., 1st Sess. 103 (1981). This language is part of the legislative history of the 1982 Transportation Appropriations Act (Pub.L. 97-102, 95 Stat. 1442), which included a provision deferring by one year the payment of all state and local taxes by Amtrak. Public Law 97-257, codified at 45 U.S.C. § 546b, converted the one year deferral into a permanent exemption. Upon passing the permanent exemption, the Senate Appropriations Committee noted:

 
This action was taken in recognition of the fact that there are many parts of the country which would gladly pay an amount equal to local or State taxes owed by Amtrak in order to have the benefit of Amtrak service. It remains the Committee's judgment that those who receive this service have some obligation to contribute toward its continuation. At a time when local jurisdictions are demanding that nationwide rail passenger service be maintained, it seems reasonable to provide for a "user contribution" whereby those areas receiving the service in turn contribute to Amtrak's continued existence through tax relief.

 S. Rep. No. 516, 97th Cong., 2d Sess. 170 (1982). *fn7" ...


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