Wheeling & Lake Erie Railway Co. v. PA PUBLIC UTILITY COM'N

• Decision Date: 11 June 2001
• Citation: 778 A.2d 785
• Parties: WHEELING & LAKE ERIE RAILWAY COMPANY, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.
• Court: Pennsylvania Commonwealth Court

778 A.2d 785

WHEELING & LAKE ERIE RAILWAY COMPANY, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.

Commonwealth Court of Pennsylvania.

Argued February 6, 2001.

Decided June 11, 2001.

Richard R. Wilson, Altoona, for petitioner.

Lawrence F. Barth, Harrisburg, for respondent.

Jason D. Sharp, Harrisburg, for intervenor, Dept. of Transportation.

Before LEADBETTER, J., and FLAHERTY Senior Judge, and MIRARCHI, Senior Judge. MIRARCHI, Senior Judge.

Wheeling & Lake Erie Railway Company (Wheeling Railway) appeals from an order of the Pennsylvania Public Utility Commission (PUC) directing Wheeling Railway to, inter alia, remove the existing rail-highway crossing bridge and construct a new bridge at its sole costs, as recommended by the administrative law judge (ALJ).

The issues on appeal are: (1) whether the PUC's authority to regulate rail-highway crossings and allocate costs of constructing and maintaining such crossings pursuant to Sections 2702 and 2704 of the Public Utility Code (Code), as amended, 66 Pa.C.S. §§ 2702 and 2704, has been preempted by Section 10501(b) of the Interstate Commerce Commission Termination Act of 1995 (ICC Termination Act), 49 U.S.C. § 10501(b); (2) whether the PUC's decision is supported by substantial evidence and constitutes a reasoned decision; and (3) whether the PUC's order allocating to Wheeling Railway the entire costs of reconstructing the subject rail-highway crossing bridge constitutes an unconstitutional taking of its property without just compensation. We affirm.

I.

On March 28, 1995, the PUC instituted a proceeding to investigate the condition of the subject rail-highway crossing bridge pursuant to its authority granted by the Code. Based on the evidence presented at hearings held on October 26, 1995, March 18, 1997 and October 14, 1998, the ALJ made the following factual findings.¹

The subject bridge is located in Fallowfield Township (Township), Washington County and carries Fox Stop Road, a township road, over Wheeling Railway's railroad tracks. The bridge was constructed in 1930 by Pittsburgh & West Virginia Railway Company (Pittsburgh Railway) pursuant to the order of the Public Service Commission, the predecessor of the PUC, granting Pittsburgh Railway's petition for approval of the construction. The construction of the bridge was necessary due to the excavation of the hill by Pittsburgh Railway to expand its rail line through the area. In approving the construction of the bridge, the Public Service Commission directed Pittsburgh Railway to, inter alia, pay "all costs and expenses incident to the construction and maintenance of the new bridge and the guard rail fences." Public Service Commission's August 1, 1929 Order.

In July 1962, Pittsburgh Railway leased its rail line and related facilities to Norfolk & Western Railway Company (Norfolk Railway). Subsequently in May 1990, Norfolk Railway in turn subleased its interests to Wheeling Railway, which currently operates one train a week in the area at speeds of twenty to thirty miles an hour over a single railroad track. Under the terms of the lease and the sublease, Wheeling Railway assumed the obligation of Pittsburgh Railway to maintain the subject bridge at its sole costs.² The subject rail-highway crossing bridge, as constructed in 1930, is a 149 foot long, three-span steel structure through girder sitting on masonry abutments with a steel-reinforced concrete deck and an asphalt-wearing surface, and was designed to carry up to fifteen tons. The primary users of the bridge are the residents of ten to eleven homes and one business on the south side of the bridge, small school buses and small emergency vehicles. Wheeling Railway's witness conceded at the hearing that neither Wheeling Railway nor its predecessors had performed any maintenance work on the subject bridge since its construction. In the past, the Township patched potholes on the cartway of the bridge and removed vegetation, debris and snow from the cartway. In addition, the Township may have resurfaced the cartway.

After its inspection of the bridge in November 1996, the engineering firm hired by the Department of Transportation concluded that the load limit of the bridge should be reduced to six tons. The further inspections of the bridge in 1994, October 1996 and August 1998 by the engineering firms hired by the Township revealed that the bridge was in the seriously deteriorated condition. The surface, deck and pedestals of the bridge were cracking and spalling. The girders, floor beams, stringers, lateral bracing and column showed heavy rusting and stains from efflorescence with some section losses. The abutment at the bridge seats was cracking and spalling, and its slopes were eroding. The engineering firms recommended reconstruction of the bridge, concluding that necessary repairs of the bridge would cost as much as the reconstruction and would not eliminate the need for further repairs in the near future. They estimated that it would cost $644,099.50 to reconstruct the bridge, and $555,400 to make the necessary repairs not including $200,000 for removing the lead-based paint from the bridge and repainting it.

In the further recommended decision, the ALJ ordered Wheeling Railway to, inter alia, (1) remove the subject bridge and construct a new three-span bridge designed to meet the present-day load limit and standards and (2) maintain the newly constructed bridge in a safe condition. The ALJ allocated the entire costs of removing and reconstructing the bridge and maintaining the newly constructed bridge to Wheeling Railway. The ALJ also ordered the Township to remove snow, ice and debris from the highway approaches and the surface of the new bridge. The PUC subsequently denied Wheeling Railway's exceptions and adopted the ALJ's further recommended decision. Wheeling Railway's appeal to this Court followed.³

II.

Section 102 of the Code, as amended, 66 Pa.C.S. § 102, defines a "public utility" to include a corporation owning or operating equipment or facilities for "[t]ransporting passengers or property as a common carrier." Under this definition, Wheeling Railway is a public utility subject to the provisions of the Code. Section 2702(b) of the Code grants the PUC exclusive power to appropriate property for construction of "crossings" across facilities of public utilities at, above or below grade and regulate construction, alteration, relocation, suspension or abolition of such crossings "to effectuate the prevention of accidents and the promotion of the safety of the public."⁴

Under its authority granted by the Code, the PUC may order necessary improvements and maintenance of the crossings to ensure the safety of the travelling public. Pennsylvania R. Co. v. Pennsylvania Public Utility Commission, 154 Pa.Super. 86, 35 A.2d 588 (1944). The PUC also has the authority to allocate the costs of construction, improvement and maintenance of the rail-highway crossing bridges pursuant to Section 2704(a) of the Code, which provides in relevant part:

[T]he cost of construction, relocation, alteration, protection, or abolition of such crossing, and of facilities at or adjacent to such crossing which are used in any kind of public utility service, shall be borne and paid, as provided in this section, by the public utilities, municipal corporations, municipal authority or non-profit organization ..., or by the Commonwealth, in such proper proportions as the commission may, after due notice and hearing, determine, unless such proportions are mutually agreed upon and paid by the interested parties.

III.

Wheeling Railway first contends that the PUC's authority under the Code to regulate the subject bridge and allocate the costs of its maintenance and reconstruction has been preempted by the ICC Termination Act.⁵

Prior to the enactment of the ICC Termination Act in 1995, the states had the jurisdiction to regulate railroad tracts and facilities within their borders under the then Interstate Commerce Act. Illinois Commerce Commission v. Interstate Commerce Commission, 879 F.2d 917 (D.C.Cir.1989). In replacing the Interstate Commerce Commission with the Surface Transportation Board, the ICC Termination Act further provides:

(b) The jurisdiction of the [Surface Transportation] Board over—

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,

is exclusive. Except as otherwise provided in this part, the remedies provided under this part with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

49 U.S.C. § 10501(b)(1) and (2).

Wheeling Railway asserts that "rail transportation" under 49 U.S.C. § 10501(b) should include rail-highway crossing bridges constructed by a railroad company within its right-of-way, over which the Surface Transportation Board now has the exclusive jurisdiction, and that the PUC therefore no longer has the authority to regulate the rail-highway crossing bridges.⁶

In determining whether the state law has been preempted by the federal statute under the Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl. 2, the court must ascertain the intent of the Congress in enacting the federal statute. Fidelity Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). The legislative intent to preempt the state law may be either explicit or implied. Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977). The preemption may be inferred (1) where...