Com., Dept. of Transp. v. Pennsylvania Public Utility Com'n
| Decision Date | 30 December 1983 |
| Docket Number | 814 and 870,Nos. 799,s. 799 |
| Citation | 79 Pa.Cmwlth. 266,469 A.2d 1149 |
| Parties | COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. BOROUGH OF HOMEWOOD and Borough of Big Beaver, Petitioners, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. COUNTY OF BEAVER, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent. C.D. 1982. |
| Court | Pennsylvania Commonwealth Court |
Richard S. Herskovitz, John B. Wilson, Charles F. Hoffman, Pa. Public Utility Com'n, Harrisburg, for respondent.
Daniel M. D'Antonio, Gene Morris, County Sol., Beaver, for County of Beaver.
David L. Gropp, Beaver, for Boroughs of Homewood and Big Beaver.
Before CRUMLISH, President Judge, and WILLIAMS and BARBIERI, JJ.
The Pennsylvania Department of Transportation (DOT), Borough of Homewood, Borough of Big Beaver and County of Beaver appeal a Pennsylvania Public Utility Commission order assessing costs of reconstruction and future maintenance of the Homewood Viaduct. We affirm.
The Commission determined that the rail-highway crossing was to be demolished and reconstructed, with the cost of said reconstruction to be assessed as follows: 50% against Conrail; 40% against DOT; 10% against Beaver County; 1 minor construction costs assessed to the Pennsylvania Turnpike Commission; and $15,000 each assessed to Homewood and Big Beaver Boroughs. 2 Homewood, Big Beaver and the County were to share one-third of all future maintenance costs.
On May 6, 1970, Homewood Borough, joined by Big Beaver Borough, initiated these proceedings by complaint, alleging that a rail-highway crossing 3 carrying an un-numbered public highway over and above three tracks of Penn Central Transportation Company (predecessor of Conrail) posed hazardous conditions to the safety of the traveling public. 4 The two boroughs relied on a 1921 Commission order directing the Pennsylvania Company (forerunner of the Pennsylvania Railroad Company) to construct at its own cost and expense the aforesaid above-grade viaduct to carry former State Highway Route 77 over and above said tracks and to provide a ramp to the then-active Pennsylvania station. Attendant costs of the Highway-approach relocation were allocated to the Pennsylvania Highway Department, with the costs of property damages assessed to Homewood Borough and Beaver County. In a 1922 order, the Commission directed Homewood Borough to maintain the station ramp, Highway Department to maintain the paving across the viaduct, and the Pennsylvania Company to maintain the viaduct.
In 1950, the Public Utility Commission directed the Pennsylvania Turnpike Commission to construct and maintain a three-span extension of the viaduct to pass over the new toll highway. The roadway paving was assigned to the Highway Department.
In 1954, the Commission ordered the deteriorated ramp portion of the structure to be closed to vehicular traffic and directed the Pennsylvania Railroad Company to erect vehicular barricades at each end of the ramp, remove the existing superstructure and construct a replacement pedestrian bridge which Homewood Borough was to maintain. 5 However, the ordered reconstruction work was never completed.
Our Court's scope of review is limited to determine whether constitutional rights have been violated, error of law committed or findings and conclusions are unsupported by substantial evidence. Pennsylvania Electric Co. v. Pennsylvania Public Utility Commission, 53 Pa. Commonwealth Ct. 186, 417 A.2d 819 (1980).
The Commission's exclusive jurisdiction over the construction of railroad-highway crossings in the Commonwealth is set forth in Section 2702(c) of the Public Utility Code, 66 Pa.C.S. § 2702(c), as follows:
[U]pon complaint, the commission shall have exclusive power after hearing, upon notice to all parties in interest ... to order such crossing heretofore or hereafter constructed to be relocated or altered, or to be suspended or abolished upon such reasonable terms and conditions as shall be prescribed by the commission .... The commission may order the work of construction ... [or] alteration ... of any crossing aforesaid to be performed in whole or in part by any public utility or municipal corporation concerned or by the Commonwealth.[ 6
The Commission has exclusive authority to make determination of allocation of costs involved in providing for the safety and public use of all bridges over railroad tracks within the Commonwealth. Department of Transportation v. Public Utility Commission, 3 Pa. Commonwealth Ct. 405, 410, 283 A.2d 313, 316 (1971). The Commission has broad powers to allocate and assess costs in railroad-highway crossing cases under Section 2704(a) of the Public Utility Code, 66 Pa.C.S. § 2704(a), which states:
[C]ost of construction ... [or] alteration ... of such crossing ... shall be borne and paid, as provided in this section, by the public utilities or municipal corporations concerned, 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.[ 7
It has long been established that, in apportioning costs in highway-rail crossing cases, the Commission is not limited to any fixed rate but takes all relevant factors into consideration, with the fundamental requirement being that its order be just and reasonable. Department of Transportation v. Pennsylvania Public Utility Commission, 21 Pa. Commonwealth Ct. 407, 413, 346 A.2d 371, 375 (1975). In a case such as this, our Court will not exercise its independent judgment on the record or weigh conflicting evidence. County of Chester v. Pennsylvania Public Utility Commission, 47 Pa. Commonwealth Ct. 366, 370, 408 A.2d 552, 553 (1979). Our inquiry is directed to whether there is substantial evidence to support the Commission's order as to the allocation of costs of reconstruction and the assignment of responsibility for future maintenance of the subject viaduct. Findings of fact made by the Commission which are supported by substantial evidence are conclusive and may not be disturbed on appeal. County of Chester, 47 Pa. Commonwealth Ct. at 370, 408 A.2d at 553.
DOT asserts that the 40% assessment of reconstruction (exclusive of spans over the Turnpike) is unreasonable because the findings of fact are unsupported by the record. The Commission found DOT's interest and involvement to be significant since DOT had a past and presently continuing obligation for paving maintenance under the 1921 and 1950 orders. Furthermore, DOT has a continuing responsibility for the safe passageway of the traveling public 8 over the Commonwealth highways 9 arising from its administrative and advisory functions, Department of Transportation, 3 Pa. Commonwealth Ct. at 413, 283 A.2d at 317, and a state highway traversed the subject bridge until 1954 and the new state highway traffic has occasionally been detoured across the subject viaduct because of state highway emergencies. 10
DOT argues that the Commission's findings of fact are not supported by the substantial evidence because the record shows it has only a paving responsibility and not a construction responsibility according to the 1921 order directing the Pennsylvania Company to maintain the structure. Other cases illustrate that the Commission has placed a duty upon DOT to share in the reconstruction costs of such a structure built by a railroad. Department of Transportation v. Pennsylvania Public Utility Commission, 3 Pa. Commonwealth Ct. 473, 284 A.2d 155 (1971) (); Pennsylvania Public Utility Commission v. Department of Transportation, 21 Pa. Commonwealth Ct. 415, 346 A.2d 376 (1975) ().
Also, the government bodies and DOT contend that the Commission's findings of fact are not supported by the substantial evidence because the Commission failed to consider the issue of deferred maintenance. However, in the 1971 and 1974 Commission orders, 11 it is shown that the Commission did consider the issue of actual causation for the bridge's deterioration. The record fails to support a conclusion that the need for reconstruction is due solely to deferred maintenance. See Department of Transportation, 3 Pa. Commonwealth Ct. at 409, 283 A.2d at 315.
Homewood and Big Beaver Boroughs and Beaver...
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