Borough of South Greensburg v. Pennsylvania Public Utility Com'n

• Decision Date: 28 June 1988
• Citation: 117 Pa.Cmwlth. 361,544 A.2d 82
• Parties: BOROUGH OF SOUTH GREENSBURG, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.
• Court: Pennsylvania Commonwealth Court

Page 82

544 A.2d 82

117 Pa.Cmwlth. 361

BOROUGH OF SOUTH GREENSBURG, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.

Commonwealth Court of Pennsylvania.

Argued May 26, 1988.

Decided June 28, 1988.

Dominic Ciarimboli, Ralph D. Conrad, Greensburg, for petitioner.

John R. Jenchura, Teri R. Simon, Consolidated Rail Corp., Philadelphia, Notice of Intervention.

Daniel Delaney, Chief Counsel, John J. Gallagher, John B. Wilson, Linda C. Smith, Harrisburg, for P.U.C.

Before COLINS and SMITH, JJ., and KALISH, Senior Judge.

COLINS, Judge.

The Borough of South Greensburg (petitioner) petitions for review of an order of the Pennsylvania Public Utility Commission (Commission), dated May 28, 1987, adopting the Recommended Decision of Administrative Law Judge (ALJ) Edward R. Casey and denying the Borough's exceptions thereto.

This matter was initiated by the Borough's filing of a complaint with the Commission on June 12, 1981. Therein, the Borough alleged that the Fairview Avenue Bridge, located within the Borough, was in a state of disrepair. This complaint requested that repairs be made to the bridge structure, the roadway and the sidewalks so as to provide safe and convenient access above the tracks of Consolidated Rail Corporation (Conrail).

Subsequent to an initial hearing, held on October 1, 1981, the Commission entered an order on October 29, 1982, directing the Pennsylvania Department of Transportation (DOT) to prepare a detailed, in-depth inspection report of the structure. This report revealed that the loss of bearing support of the concrete piers and beams had reached a point where representatives of Conrail, the Borough and DOT agreed that the bridge should be closed to all traffic, in the interest of public safety. Therefore, by emergency order dated November 21, 1983, the Commission directed the Borough to barricade the crossing and post a suitable detour for all highway traffic.

A further hearing was held on November 22, 1983 at which the inspection report was considered and where the Borough agreed to explore the feasibility of the construction of an at-grade crossing to replace the existing overhead bridge. Engineering conferences were conducted on December 14, 1983 and February 2, 1984 with representatives of Conrail, the Borough, DOT, and Westmoreland County (County) in attendance. All interested parties were in agreement that the most feasible and practical alternative to the rehabilitation or reconstruction of the existing structure would be an at-grade crossing with automatically operated crossing warning signals.

This alternate proposal was received into the record at a further hearing on June 7, 1984. At this hearing, DOT presented testimony which indicated that as long as DOT's design directives were followed, and the appropriate warning signals were installed at the crossing, it would have no objection to the at-grade crossing proposal. DOT's testimony also indicated that the Bridge Bill ¹ would provide $210,000 for the project and that a request had been made for an increase in appropriation from that figure to $700,000. DOT further testified that if the increase was granted, the State's portion of the funding would equal approximately 80% of the total appropriation.

Testimony was also presented by a Borough engineer who had been requested to conduct an engineering study and compile a feasibility plan and cost estimate for construction of an at-grade crossing. This preliminary plan and cost estimate was entered into the record. The estimated cost of construction, including the removal of the existing structure and construction of the new crossing approaches was $548,000.

A witness for Conrail testified that the company had no objection to the construction of an at-grade crossing. Conrail, which presently had two tracks at the crossing location, agreed, as part of the project, to remove one track, leaving only one track to pass through the crossing. The installation of a rubber-type crossing and the relocation of the switch to remove the second track was to be done at an estimated cost of $65,000. In addition, it was estimated that the installation cost of new flashing light signals would be approximately $75,000. The Conrail witness also testified that it would be recommended that any additional necessary railroad right-of-way be made available for the project.

Finally, a witness testifying for the County voiced no objection to the proposed construction of the at-grade crossing to replace the existing bridge. However, the County would not agree to bear any of the cost of the proposed crossing, or any future maintenance. The County did agree to pay $35,000 to the Borough from the grant for community development toward the demolition of the existing structure.

The Commission issued its order on November 28, 1984, wherein it directed the Borough to submit detailed construction plans, remove the bridge structure and construct the new approaches to the crossing. The order further required Conrail to construct the new at-grade crossing.

After the completion of the construction of the crossing, a hearing was held by the Commission on June 3, 1986, for the receipt of evidence concerning final allocation of costs and maintenance of the crossing. On March 23, 1987, the ALJ issued his Recommended Decision allocating costs and maintenance responsibilities among all of the parties. The ALJ allocated 80% of the costs to DOT, 12.5% to the Borough, 4.2% to the County, and 3.3% to Conrail. Exceptions were taken by the Borough. The Commission by order dated May 28, 1987, adopted the Recommended Decision of the ALJ and denied the Borough's Exceptions. This appeal followed.

The petitioner raises two issues for our review: first, whether the Commission erred as a matter of law and abused its discretion in adopting the ALJ's allocation of the costs of the bridge project between DOT, Conrail, the Borough, and the County; and second, whether Conrail should be estopped from receiving damages for property appropriated for the at-grade crossing.

Our scope of review is limited to a determination of whether the order of the Commission violates the Borough's constitutional rights, involves an error of law or is unsupported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. See also Erie Lackawanna Railway Company v. Pennsylvania Public Utility Commission, 2 Pa.Commonwealth Ct. 396, 278 A.2d 188 (1971).

The Commission is vested with the power to allocate costs for the construction, relocation and alteration of rail-highway crossings in Section 2704(a) of the Public Utility Code, 66 Pa.C.S. § 2704(a). In apportioning costs, the Commission is not limited to any fixed rule, but takes into consideration all relevant factors, the only requirement being that its order be just and reasonable. Department of Transportation v. Pennsylvania Public Utility Commission, 79 Pa.Commonwealth Ct. 266, 469 A.2d 1149 (1983). The Borough alleges that the ALJ's allocation, as adopted by the Commission, was so unreasonable so as to constitute an error of law. We must disagree.

The Borough's argument is...