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EAST ROCKHILL TOWNSHIP v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (04/06/88)

decided: April 6, 1988.

EAST ROCKHILL TOWNSHIP, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeal from the order of the Pennsylvania Public Utility Commission, No. I-860019 dated April 29, 1987.

COUNSEL

John B. Rice, Jaczun, Grabowski & Leonard, for petitioner.

John J. Gallagher, Assistant Counsel, with him, John B. Wilson, Deputy Chief Counsel, Daniel P. Delaney, Chief Counsel, for respondent.

Stephen F. J. Martin, Office of Chief Counsel, Department of Transportation, with him, James F. Kilcur, G. Roger Bowers, Eugene N. Cipriani, Raymond J. Porreca, Jr., for intervenor, Southeastern Pennsylvania Transportation Authority.

Judges Colins, Palladino, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 115 Pa. Commw. Page 229]

East Rockhill Township (Township) petitions for review of a Pennsylvania Public Utility Commission (Commission) Order of April 29, 1987 adopting the Recommended Decision of Administrative Law Judge (ALJ) Martin B. Fountain dated February 20, 1987 and denying the Exceptions filed thereto by the Township.

[ 115 Pa. Commw. Page 230]

This appeal involves the allocation of responsibility for the replacement, repair and maintenance of an existing rail highway crossing carrying Rockhill Road over and above the railroad tracks of Southeastern Pennsylvania Transportation Authority (SEPTA) in the Township, which is located in Bucks County. The Township closed this bridge to vehicular traffic in December of 1985 due to the occurrence of an accident whereby a car went through the railing rendering the bridge hazardous to public use. The Commission was notified of this event on December 4, 1985 and issued an emergency Order on the same date affirming the Township's action and ordering the bridge closed to vehicular traffic. Thereafter, the Commission ordered that an investigation be instituted for the purpose of determining all matters relating to the rail highway crossing and that a hearing be held following notice to all parties.

A hearing was held on June 25, 1986 with appearances entered on behalf of Consolidated Rail Corporation (Conrail), SEPTA, the Township, the Pennsylvania Department of Transportation (DOT), and the Commission. No appearance was entered on behalf of Bucks County. In addition, several members of the public attended and testified as to the need for the bridge being in service.

At the hearing, testimony was presented by Conrail, SEPTA and DOT indicating that each had performed little or no maintenance on the bridge in the past and that they were presently unwilling to do so unless ordered by the Commission. The Township presented testimony that it had never performed any maintenance or repair on the bridge and that it had taken back Rockhill Road from DOT under the State Road Turnback Program. However, the takeback agreement executed between the parties specifically excluded the maintenance, replacement and repair of all bridges, in particular, this rail highway crossing.

[ 115 Pa. Commw. Page 231]

The ALJ issued a Recommended Decision which ordered that the bridge be repaired temporarily and that it ultimately be replaced with a new bridge. In the Order, the ALJ apportioned the cost of repairs to the existing bridge and construction of a new bridge exclusively between Conrail, SEPTA and the Township. Conrail was allocated the primary cost of repairing the old bridge until a new one could be constructed. SEPTA and the Township were each ordered to pay a sum of $3,000.00 as their respective share of the costs of repair on the old bridge, which was estimated at a cost of $30,000. SEPTA and the Township were allocated the cost of reconstruction of the new bridge with the Township being liable for 90% of those costs. In the Recommended Decision, the ALJ proposed a scenario whereby an amendment*fn1 to what is commonly known as the Highway-Railroad and Highway Bridge Capital Budget Act for 1982-1983,*fn2 would provide for 80% payment of the new bridge costs and the Township and SEPTA would each pay 10% of the remaining unfunded costs. The Order imposing 90% liability upon the Township apparently assumed 80% reimbursement under the State Bridge Bill.

The Township filed Exceptions to the Recommended Decision of the ALJ objecting to the apportionment of costs. On April 24, 1987, the Commission adopted the Recommended Decision of the ALJ and denied the Exceptions. The Township timely appealed to this Court.

On appeal to this Court, the Township raises three issues: whether the Commission erred in ordering that 90% of the reconstruction costs of the Rockhill Road Bridge ...


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