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PITTSBURGH AND LAKE ERIE RAILROAD COMPANY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION (04/05/89)

decided: April 5, 1989.

THE PITTSBURGH AND LAKE ERIE RAILROAD COMPANY, PETITIONER
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION, RESPONDENT



Appeal from the Order of the Pennsylvania Public Utility Commission, in the case of City of New Castle v. Department of Highways (now Transportation) of the Commonwealth of Pennsylvania, Shenango Valley Transportation, Buffalo, Rochester and Pittsburgh Railway Company, The Baltimore and Ohio Railroad Company, The Pittsburgh and Lake Erie Railroad Company, Erie Railroad Company, City of New Castle Water Company, Pennsylvania Power Company, The Bell Telephone Company of Pennsylvania, and Manufacturers Light and Heat Company, (Mahoning Avenue Viaduct -- L.R. 77), No. C-16920, dated April 7, 1988.

COUNSEL

Richard A. Porach, for petitioner.

Linda C. Smith, Assistant Counsel, with her, John B. Wilson, Deputy Chief Counsel, and Daniel P. Delaney, Chief Counsel, for respondent.

Christel L. Ertel-Kahlbaugh, Assistant Counsel, with her, Stephen F. J. Martin, Assistant Counsel, and John L. Heaton, Chief Counsel, for intervenor, Department of Transportation.

President Judge Crumlish, Jr., and Judges Craig, Doyle, Barry, Colins, McGinley and Smith. Opinion by Judge Colins.

Author: Colins

[ 124 Pa. Commw. Page 612]

The Pittsburgh and Lake Erie Railroad Company (P&LE) petitions for review of an order of the Pennsylvania Public Utility Commission (Commission) which, inter alia, imposed the responsibility of maintaining Pier "L" and Span "B" of a bridge commonly known as the Mahoning Avenue Viaduct upon P&LE. We affirm.

The instant controversy stems from the reconstruction of a bridge which carries Mahoning Avenue, a state highway, over the Shenango River, the tracks of P&LE and Consolidated Rail Corporation and a right-of-way owned by CSX Transportation, Inc., in the City of New Castle, Pennsylvania. In 1983, an inspection was performed on the bridge. As a result of the findings, the Commission issued an Emergency Order on September 8, 1983, requiring that the bridge be posted for a maximum load limit of ten tons.

The Pennsylvania Department of Transportation (Department) submitted preliminary plans for the reconstruction of the bridge to the Commission on July 19, 1984. A field investigation was conducted which revealed the need for extensive repairs to bring the bridge up to the maximum legal load limit. On September 14, 1984, the Department petitioned to reopen this proceeding in order to facilitate reconstruction of the bridge. The Commission granted the Department's petition, approved the construction plans and ordered the Department to complete the work at its initial expense.

On May 20, 1987, a hearing was held for the purpose of determining the allocation of construction costs and the assignment of future maintenance responsibilities between

[ 124 Pa. Commw. Page 613]

    the parties.*fn1 Administrative Law Judge (ALJ) Robert P. Meehan filed his Recommended Decision on February 16, 1988, therein imposing upon P&LE the responsibility of maintaining Pier "L" and the superstructure of Span "B" of the bridge. P&LE filed timely Exceptions to the ALJ's Recommended Decision.*fn2

P&LE took exception to the ALJ's conclusion that P&LE receives a benefit from the existence of the bridge because it reduces P&LE's insurance costs. The Commission, by order and opinion adopted April 7, 1988 and entered June 1, 1988, sustained this exception, finding no evidence in the record to support this conclusion. P&LE also took exception to the ALJ's conclusion that it benefits from the existence of the bridge. The Commission noted that P&LE owns and operates seven (7) tracks under this bridge. Noting that it had also assigned maintenance responsibilities to P&LE's predecessor, the Commission stated: "[w]e find nothing in the record to warrant a change of our maintenance assignment to P&LE." ...


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