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Norfolk Southern Railway Co. v. Public Utility Commission

April 30, 2009

NORFOLK SOUTHERN RAILWAY COMPANY, PETITIONER
v.
PUBLIC UTILITY COMMISSION, RESPONDENT



The opinion of the court was delivered by: Judge Leavitt

Argued: March 30, 2009

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOSEPH F. McCLOSKEY, Senior Judge.

OPINION

Norfolk Southern Railway Company (Norfolk Southern) petitions for review of an adjudication of the Pennsylvania Public Utility Commission (PUC) that ordered it primarily liable for the repair and maintenance of a railroad-highway crossing in the City of Harrisburg (City). At issue is a retaining wall that runs along the highway portion of the crossing and is located both within and outside Norfolk Southern's right-of-way for the railroad portion of the crossing. Finding no abuse of discretion by the PUC in its allocation of responsibility for future maintenance of the wall, we will affirm.

The subject railroad-highway crossing*fn1 is located in the City of Harrisburg, where Norfolk Southern's rail lines cross over State Route 3018, or Herr Street.*fn2 In 1890 the crossing was at-grade. In approximately 1903, the Pennsylvania Railroad altered the crossing from at-grade to grade-separated, to make Herr Street pass underneath the railroad tracks. To effect this new configuration, excavation was done and retaining walls constructed along both sides of Herr Street. With the exception of the street itself, the Pennsylvania Railroad owned all land within the crossing, including the land on which the retaining walls were built.

By order of January 18, 1938, the PUC ordered the Pennsylvania Railroad to improve the Herr Street crossing by constructing new bridge spans and to undertake continuing responsibility for their maintenance. However, that order was silent with respect to maintenance of the remainder of the crossing, including the retaining walls.

The Pennsylvania Railroad sold its facilities to Penn Central Corporation, which continued to own all property adjacent to the retaining walls until 1979, when a portion of the adjacent land was sold to Mark Cramer and developed into a parking lot. Thereafter, Amtrak took possession of the railroad facilities at the crossing, which it transferred to Conrail in 1985. In 1992, Conrail sold other land adjacent to the retaining walls to the City, but those deeds were silent as to maintenance of the retaining walls. In 1999, Norfolk Southern acquired ownership of the railroad facilities from Conrail.

Currently, the crossing consists of Herr Street, which runs in an east-west direction, and the railroad's bridge, which runs north-south. On average, 14,095 automobiles and 423 trucks travel under the bridge each day, and 100 freight trains and two passenger trains pass over the bridge. The bridge itself is composed of steel superstructures resting on masonry abutments approximately 13 feet above street level. Attached to the abutments are retaining walls that run parallel to both sides of Herr Street. These walls are approximately 12 feet high where they adjoin the abutments and taper to approximately 7.5 feet high where they end. The walls lie primarily within Norfolk Southern's right-of-way. However, on the western approach to the crossing, where land in the railroad's right-of-way was sold, not all of the retaining walls are located on land owned by Norfolk Southern. At the base of the walls, on both sides of Herr Street, lie eight foot wide sidewalks.

When Pennsylvania Railroad built the crossing, it placed a brick façade on the abutments and retaining walls. The brick facing was anchored to the retaining walls with steel straps. Over time, water infiltrated behind the brick façade and caused the steel anchor straps to rust. As a result, portions of the brick facing have separated from the retaining walls and collapsed onto the sidewalk. When the City discovered this problem, it became concerned for pedestrian and motorist safety and notified the PUC. In response, the PUC launched an investigation, which determined that the retaining walls are structurally sound and the bridges are capable of carrying train traffic without danger of collapse. Nevertheless, the retaining walls were found to be deteriorating and required attention.

Norfolk Southern prepared a repair plan for the retaining walls, which calls for removing the loose brick and replacing it with formed concrete. Norfolk Southern estimates that it will cost $145,000 to repair the portion of the retaining walls located within its right-of-way, and $85,000 to repair the area outside of its right-of-way. Reproduced Record at 63a-64a (R.R. __). The PUC directed an Administrative Law Judge (ALJ) to conduct a hearing on how to allocate costs for the repair and future maintenance of the retaining walls.

On March 5, 2008, representatives from PennDOT, the City, Norfolk Southern and the Commission's Bureau of Transportation and Safety attended a hearing before the ALJ. Norfolk Southern agreed to perform all of the necessary repair work for the entire length of the retaining walls on both sides of Herr Street, and to bear the cost for such repairs for the portions of the retaining walls within its right-of-way. Norfolk Southern further agreed to assume responsibility for future maintenance of the retaining walls within its right-of-way, and the superstructure of the bridge. PennDOT agreed to maintain the roadway of Herr Street at the crossing between the curb lines. The City agreed to maintain the sidewalks, curbs and street lighting at the crossing and to remove snow, ice and trash from the sidewalks. The parties memorialized their agreements in a Stipulation of Settlement filed with the PUC on March 7, 2008.

As a result of the parties' agreements regarding repairs and maintenance, the ALJ was left to determine (1) who should pay for the repair work to the portions of the retaining walls located outside Norfolk Southern's right-ofway, and (2) who shall maintain the retaining walls outside the railroad's right-ofway once the repairs are completed.

Beginning with the cost of the repair work, the ALJ recommended that PennDOT and the City each reimburse Norfolk Southern for 50 percent of the costs to repair the portions of the retaining walls located outside Norfolk Southern's right-of-way, up to a maximum of $42,500 each. In making that allocation, the ALJ analyzed the relative benefit that PennDOT and the City will receive from repair of the crossing. The ALJ explained that the crossing provides a safe and unimpeded interface between rail and vehicular traffic, thereby benefitting both PennDOT and the City. Additionally, the retaining walls allow Herr Street to remain open to pedestrians, and they support portions of the adjacent parking lot. For these reasons, the ALJ recommended that PennDOT and the City share in the costs of repair.

Turning next to future maintenance responsibilities, the ALJ recommended that Norfolk Southern assume responsibility for maintaining the entire length of the retaining walls, both within and outside its right-of-way. The ALJ reasoned that dividing the maintenance responsibility among the parties was not practical and would lead to disputes, particularly because the property lines were not clear. As noted by the ALJ, Norfolk Southern and PennDOT were able only to approximate the property line for Norfolk Southern's right-of-way. The ALJ concluded that it was reasonable for Norfolk Southern to bear ...


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