Appeal from the Order of the Pennsylvania Public Utility Commission, in the case of City of Altoona v. Consolidated Rail Corporation concerning the bridge carrying 37th Street above the grade of the tracks of the railroad company, in the City of Altoona, Blair County, No. C-812690.
Margaret S. Woodruff, with her, Gayle Chatilo Sproul and Ralph G. Wellington, Schnader, Harrison, Segal & Lewis, for petitioner.
Linda C. Smith, Assistant Counsel, with her, John B. Wilson, Deputy Chief Counsel, and Daniel P. Delaney, Chief Counsel, for respondent.
Stephen F. J. Martin, Assistant Counsel, with him, Robert H. Raymond, Jr., Assistant Chief Counsel, and John L. Heaton, Chief Counsel, for Department of Transportation, intervenor.
Judges Palladino and Smith, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Palladino. Dissenting Opinion by Senior Judge Kalish.
[ 125 Pa. Commw. Page 336]
Consolidated Rail Corporation (Conrail) appeals from a decision of the Public Utility Commission (PUC) which ordered Conrail to: (1) pay the City of Altoona $15,000.00 as contribution to the expenses of repairing the 37th Street Bridge in Altoona; (2) bear costs of $7,673.08 it had incurred in furnishing construction engineering and inspectors for the project; and (3) bear the costs of right-of-way damages, estimated at $7,785.00, which it had incurred in the construction of the project. The sole issue before us is whether federal law preempts the PUC's authority to allocate costs to Conrail in the present case.
In October of 1981, the City of Altoona filed a complaint with the PUC alleging that the 37th Street Bridge, which carries 37th Street over Conrail tracks, was unsafe and in need of major repairs. The City requested that the PUC determine ownership of the 37th Street Bridge and then determine the party or parties responsible for reconstruction and repairs of the bridge. Hearings were held before an Administrative Law Judge (ALJ), following which the PUC entered an order, in November of 1982,
[ 125 Pa. Commw. Page 337]
directing the City to prepare preliminary construction plans and cost estimates for replacement of the bridge. The City submitted the plans, and, thereafter, on July 6, 1984, the PUC issued an order directing the City to proceed with the bridge reconstruction project.
After the reconstruction had been completed, a hearing was held before an ALJ to allocate the costs of the project pursuant to the PUC's authority under section 2704(a) of the Public Utility Code (Code), 66 Pa. C.S. § 2704(a).*fn1 The ALJ found that Conrail incurred costs of $7,673.08 in providing engineering and inspection services for the project, and that the City incurred costs of $7,785.00 in acquiring Conrail's right-of-way. The City had incurred total costs of $1,341,392.58 in construction of the project. Of that total amount, the City was reimbursed $992,275.86*fn2 from federal funds and $186,053.57 from Commonwealth funds. The federal funds covered 80% of the total cost, and the Commonwealth funds covered another 15% of the total cost.
[ 125 Pa. Commw. Page 338]
The ALJ issued a recommended decision allocating costs of the project that had not been reimbursed. The PUC adopted the recommended decision and, on April 27, 1988, issued an order which provides, in pertinent part:
1. That Consolidated Rail Corporation pay a sum or sums of money equal to $15,000 to the City of Altoona as its share of the costs for the project.
2. That Consolidated Rail Corporation bear the costs incurred by it in the amount of $7,673.08 in furnishing construction engineering, inspectors, etc. for the project, and bear the costs of the right-of-way damages incurred by ...