Com., Dept. of Transp. v. Pennsylvania Public Utility Com'n

• Decision Date: 24 August 1983
• Citation: 464 A.2d 645,76 Pa.Cmwlth. 525
• Parties: COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION et al., Respondents, Township of North Huntingdon, Intervenor.
• Court: Pennsylvania Commonwealth Court

Page 645

464 A.2d 645

76 Pa.Cmwlth. 525

COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION et al., Respondents, Township of North Huntingdon, Intervenor.

Commonwealth Court of Pennsylvania.

Argued Sept. 15, 1982.

Decided Aug. 24, 1983.

Herbert G. Zahn, Stephen Dittman, Harrisburg, for petitioner.

Joseph Malatesta, Jr., Chief Counsel, John J. Gallagher, Alfred Lowenstein, Harrisburg, for Public Utility Com'n.

Thomas P. Cole, II, Sol. Township of N. Huntingdon, Greensburg, for intervenor.

Before ROGERS, WILLIAMS and MacPHAIL, JJ.

WILLIAMS, Judge.

The Pennsylvania Department of Transportation (DOT) petitions this court to review an order issued by the Pennsylvania Public Utility Commission (Commission) directing DOT to pay ten percent of the actual costs of: (1) preparing completed construction plans for the improvement of the western approach to the Barner Hill Road Bridge (Bridge) located in North Huntingdon Township (Township), Westmoreland County (County), and (2) providing all material and performing all work necessary to improve the western approach to the bridge. The Township, a respondent in the proceedings below, has intervened in the instant appeal. The Township requests this court to consider the reasonableness of the order of the Commission directing it to pay certain percentages of the costs incurred by Conrail and the County in making several improvements to the bridge and its approaches.

In February, 1978, David H. Woomer, filed a formal complaint against the Township, County, West Penn Power Company (West Penn), National Railroad Passenger Corporation (Amtrak), Consolidated Railroad Corporation (Conrail) and DOT. The complaint alleges that the bridge is in disrepair and is incapable of accomodating modern vehicular traffic. The complaint further avers that the bridge is the only means of ingress and egress for approximately thirteen families, including the complainant and his family; and that the western approach to the bridge cannot be safely negotiated by emergency vehicles. Thus, the complaint asserts, the welfare of the families is jeopardized by the condition of the bridge. The Barner Hill Road Bridge is an old wooden bridge built by Pennsylvania Railroad in 1903. It crosses three sets of rail tracks now owned and operated over by Conrail. The bridge carries Barner Hill Road over the three sets of rail tracks. Approximately two thousand feet to the west of the Bridge is a dead-end, and ninety-six feet to the east of the bridge Barner Hill Road intersects with state highways.

All of the respondents answered the complaint; and all but one, Conrail, moved to dismiss the action as to themselves. Conrail answered the complaint by denying that the bridge was unsafe for vehicles of the size and weight for which it was originally designed. As for the remaining respondents, the major issue focuses on the respective parties' responsibility to maintain the bridge.

The County's answer denied providing any service to the bridge; and further denied any responsibility for any alleged unsafe condition on the bridge. West Penn averred that the bridge is not serviced by it, and that it has no responsibility to provide a safe means of egress and ingress to the families living on the south side of the bridge. West Penn further pleaded that it is beyond the power and scope of its charter to provide a bridge for the convenience and service of the general public. DOT's motion to dismiss asserted that the complaint failed to allege that the bridge crossing is on a state highway. DOT further maintained that it receives no funds with which to repair, reconstruct or maintain highways or crossings that have not been designated state highways by the legislature. Amtrak's answer alleged that it does not own any of the rail track existing below the bridge, and that it has no service interest in the bridge. Amtrak also stated that the line of rail is operated by Conrail under contract. Amtrak, therefore requested that the complaint, as against it, be dismissed. The Township's motion to dismiss contended that it has never maintained the bridge and that it has no funds at its disposal to use to repair, reconstruct, or maintain the bridge. The Township argued that it has no jurisdiction over the bridge and has no legal authority to involve itself with repairs, reconstruction or maintenance of the bridge.

A hearing before an Administrative Law Judge (ALJ) was held on May 18, 1978. After hearing the testimony of the complainant, the engineer for the Township, the Township Commissioner and the Senior Civil Engineer for Conrail, the ALJ concluded that DOT, West Penn and Amtrak were not proper parties to the action, and could be dismissed as parties to the action. As for the remaining parties the ALJ ordered them to cooperate in conducting a study into the feasibility of: (1) providing an at-grade crossing in place of the present above grade crossing, (2) connecting existing Township roads to provide alternate access to the Barner Hill area, (3) increasing the load-carrying capacity of the present bridge to 13 tons and improving the southern approach to the bridge so as to accommodate emergency service and other service vehicles, and (4) constructing a new bridge with highway approaches of current standards capable of carrying 20 ton loads. The ALJ further ordered that the study and estimates of the proposed plan be distributed to all concerned parties, and that a hearing be scheduled for the purpose of adopting the proposed plans. The ALJ's Initial Decision was dated September 7, 1978.

Exceptions to the ALJ's Initial Decision were filed by Conrail and the Township, on October 4, and October 6, 1978, respectively. At a public session on November 21, 1978, on motion of Commissioner Helen O'Bannon, the record was reopened, the Commission staff was made a party to the proceedings, and the matter was remanded to the ALJ so that the testimony of the Commission's staff could be received into the record.

During a hearing held before the ALJ on May 1, 1979, the Commission's staff was given the opportunity to offer testimony estimating the cost of an engineering study. The engineering study was to outline all alternatives for rehabilitating the bridge, and improving its western approach while also estimating the costs of implementing the final plans for the chosen alternative. The Commission's staff recommended that the County and Township share the responsibility of improving the western approach to the bridge. DOT was present at the hearing and renewed its motion to be dismissed from the proceedings.

Before the ALJ issued his Supplemental Initial Decision, on May 11, 1979 the Township submitted a petition requesting the Commission to take additional testimony concerning the ownership of the bridge. The Township also wanted an additional opportunity to show that DOT should not be dismissed as a party to the proceedings. It contended that the roads on both sides of the bridge are owned by the Commonwealth of Pennsylvania and that the responsibility of improving the approaches to the bridge should be borne by the Commonwealth. DOT answered the Township's petition by denying the contention that the Commonwealth owned the roadway on both sides of the bridge. DOT offered a brief history of the ownership of Barner Hill Road to show that through legislation the Commonwealth had relinquished ownership of the roadway to the township in May, 1945.

After considering the additional evidence adduced at the May 1, 1979 hearing, the ALJ issued a Supplemental Initial Decision on May 16, 1979 wherein he ordered West Penn and DOT dismissed as parties to the proceedings. The ALJ further ordered the Township and County to prepare and submit detailed plans and cost estimates for improving the approach to the Barner Hill bridge. Additionally, Conrail was ordered to perform an engineering review of the structure of the bridge and to furnish the Commission and all parties with copies of its findings. A further hearing on the matter was ordered so that the parties could discuss the adoption of the plans submitted by the parties.

The Commission, by an order of July 12, 1979 entered on July 24, 1979, adopted the ALJ's Supplemental Initial Decision. Accordingly, a further hearing was held on January 24, 1980 to consider the reports prepared by the parties.

After the hearing of January 24, 1980 the ALJ drafted a Supplemental Initial Decision dated October 14, 1980 which was subsequently adopted by the Commission at its public meeting held on February 13, 1981. This Supplemental Initial Decision concluded that Conrail, DOT, the Township and County were proper parties to the proceedings. Contrary to an earlier decision dismissing DOT as a party, only West Penn and Amtrak were dismissed as parties. The ALJ further concluded that pursuant to the Public Utility Code, DOT, Conrail, the Township and County were proper parties to share the costs of any improvement to the bridge and its approaches.

Pursuant to the Commission's adopted order of February 13, 1981 as entered on February 25, 1981, Conrail was to complete construction plans for the rehabilitation of the bridge and to provide all material and perform all work necessary to rehabilitate and strengthen the bridge. The County was ordered to complete construction plans for the improvement of the western approach to the bridge in accordance with the preliminary plans submitted by the County. The Commission further ordered the County to provide all material and perform all work necessary to improve the western approach to the bridge. Upon completion of the improvements, Conrail and the County were ordered...