MILLCREEK TP. v. PA. PUBLIC UTILITY COM'N

• Decision Date: 05 June 2000
• Citation: 753 A.2d 324
• Parties: MILLCREEK TOWNSHIP, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.
• Court: Pennsylvania Commonwealth Court

753 A.2d 324

MILLCREEK TOWNSHIP, Petitioner, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Respondent.

Commonwealth Court of Pennsylvania.

Argued February 7, 2000.

Decided June 5, 2000.

Evan E. Adair, Erie, for petitioner.

David E. Screven, Harrisburg, for respondent.

Before KELLEY, J., FLAHERTY, J., and NARICK, Senior Judge.

NARICK, Senior Judge.

Millcreek Township (Township) appeals from an order of the Public Utility Commission (PUC) that denied the Township's exceptions to the recommended decision of the administrative law judge (ALJ). The Township presents three issues for our review. First, whether PUC committed an abuse of discretion by making factual determinations not supported by substantial evidence; second, whether PUC's action violates the State Highway Law (Highway Law)¹; and third, whether PUC erroneously interpreted the agreements between the Pennsylvania Department of Transportation (DOT) and Consolidated Rail Corporation (Conrail) and Norfolk Southern Railway Company (Norfolk). For the reasons set forth herein, we affirm.

The relevant facts are as follows. On December 23, 1993, DOT filed an application with PUC requesting approval to replace an existing highway railroad crossing bridge on Peninsula Dr. (State Route 832) located in the Township, Erie County. Conrail and Norfolk own the railroad tracks over which the bridge crosses. No Township street intersects S.R. 832 in the immediate vicinity of the subject rail-highway crossing bridge. DOT's application requested that the existing two-lane bridge, including sidewalks on both sides, be removed and replaced with a four-lane bridge, also with sidewalks on both sides. PUC issued an order approving the application consistent with the plans submitted by DOT and providing for a post-construction evidentiary hearing at the request of any party to address cost allocation and any unresolved issues.

On October 26, 1996, DOT completed the crossing bridge reconstruction and adjoining road expansion at a total cost of $10,461,064, with Federal funds covering 80% of the construction cost. (R.R. at 41a). On August 13, 1997, without involvement of the Township, DOT entered into a Stipulation of Partial Settlement with Conrail and Norfolk whereby the railroads agreed to pay $157,722.00 and $95,728.50, respectively, toward the cost of construction in exchange for a release from all future bridge maintenance, rehabilitation or replacement responsibility. DOT then petitioned PUC to conduct an evidentiary hearing for the purpose of allocating project costs and future maintenance responsibilities.

At the November 22, 1996 evidentiary hearing conducted by PUC's ALJ, DOT requested that responsibility for maintenance of the protective fencing surrounding the sidewalk be assigned to the Township. DOT also requested that the Township be assigned responsibility for snow and ice removal from the sidewalk. DOT accepted responsibility for all other bridge reconstruction and maintenance costs, including snow and ice removal from the roadway. Despite the Township's objection, the ALJ's recommended decision assigned responsibility for snow, ice and debris removal from the bridge sidewalks to the Township, including any future sidewalks that DOT may construct along S.R. 832's approach to the bridge. The ALJ further recommended that all other costs and maintenance responsibility be assigned to DOT, including maintenance of the protective fencing surrounding the sidewalks on the bridge. The ALJ's recommended decision also incorporated the Stipulation of Partial Settlement agreed to by DOT, Conrail and Norfolk. The Township filed exceptions to the ALJ's recommended decision and DOT filed reply exceptions, which Conrail and Norfolk joined after the ALJ granted their petitions, nunc pro tunc, to file reply exceptions.² PUC issued a final order dated June 10, 1999, in which it denied each of the Township's exceptions and adopted the ALJ's recommended decision. The instant appeal ensued.³

Initially, we note that § 2704(a) of the Public Utility Code (Code)⁴ vests PUC with exclusive jurisdiction to allocate costs and maintenance responsibility of rail-highway crossings to any public utility or municipal corporation concerned, or to the Commonwealth. 66 Pa.C.S. § 2704(a). In executing this statutory duty, PUC is not limited to a fixed rate or formula but may consider all relevant factors in apportioning such costs provided that the decision has a sound legal and factual basis and the result is just and reasonable. AT & T v. Pennsylvania Public Utility Commission, 558 Pa. 290, 306, 737 A.2d 201, 209 (1999) citing City of Philadelphia v. Philadelphia Electric Co., 504 Pa. 312, 324, 473 A.2d 997, 1003 (1984). Further, PUC must make specific findings of fact delineating the factors considered in reaching its determination. Greene Township Board of Supervisors v. Pennsylvania Public Utility Commission, 668 A.2d 615 (Pa.Cmwlth.1995).

On appeal, the Township first argues that PUC abused its discretion by allocating to the Township responsibility for snow, ice and debris removal from sidewalks of the reconstructed rail-highway crossing and any future sidewalks that DOT may construct on the approaching roadway. The Township contends that the record does not contain substantial evidence supporting this determination. We disagree and conclude that the record contains sufficient support for PUC's conclusion that Township residents will primarily benefit from the sidewalks on the bridge, and therefore, allocation of sidewalk maintenance responsibility to the Township is just and reasonable.

In presenting its abuse of discretion argument, the Township maintains that PUC failed to base its decision on an analysis of the five factors set forth in AT & T v. Pennsylvania. Public Utility Commission, 709 A.2d 980 (Pa.Cmwlth.1998), reversed by, 558 Pa. 290, 306, 737 A.2d 201, 209 (1999)

. The Township asserts that when apportioning costs under § 2704(a) of the Code, PUC must consider and analyze the following factors:

• The party that originally built the crossing;

• The party that owned and maintained the crossing;

• The relative benefit initially conferred on each party through construction of the crossing;

• Whether either party is responsible for the deterioration of the crossing; and

• The benefit received by each party as a result of the reconstructed crossing.

The Township argues that under these factors it should prevail since: 1) DOT constructed and maintained the original bridge and sidewalks; 2) travelers on S.R. 832—not the Township—received the benefit of the original and reconstructed crossings; and 3) the record is void of evidence concerning the deterioration of the crossing. We reject this argument for two reasons. First, in reversing this Court's order in AT & T, 709 A.2d 980, the Pennsylvania Supreme Court clearly stated that PUC is not required to set forth an analysis of these five factors. AT & T, 558 Pa. at 306, 737 A.2d at 209. Specifically, the Supreme Court stated that "to the extent that the Commonwealth Court's opinion may be read to establish a mandatory, exclusive list of considerations, we expressly reject such a limitation." Id. The Supreme Court further stated that "a practice which would hold PUC to a more rigorous standard in expressing its reasons for a cost allocation determination would unnecessarily infringe upon the discretionary aspect of [its] decision...." Id. at 312, 737 A.2d at 213.

Second, even though it was not required to present a formal analysis, PUC clearly considered all relevant factors when allocating the costs and maintenance responsibilities for the reconstructed rail-highway crossing. The record reflects that Federal funds covered 80% of the cost of the project with DOT responsible for the remaining 20% of the cost. (R.R. at 41a). DOT sought contributions from the railroads since the presence of their tracks necessitated construction of the crossing at issue. Conrail and Norfolk collectively agreed to contribute $253,450.50 toward the reconstruction cost in exchange for a release from all future maintenance responsibilities. (R.R. at 42a). PUC then weighed the ownership interests, maintenance history and the benefits flowing to the respective parties and adopted the cost allocation structure presented by DOT. (ALJ Recommended Decision, December 23, 1998 at 13-19, R.R. at 78a-84a). Following the same considered approach, PUC then assigned all maintenance responsibility for the crossing to DOT with the exception of sidewalk snow, ice and debris removal, which was assigned to the Township since the evidence showed that its residents generate the majority of pedestrian traffic on the bridge. (Notes of Testimony at 14, 16, 25, R.R. at 41a, 43a, 52a; ALJ Recommended Decision at 16, R.R. at 81a). This result is consistent with this Court's holding in Tredyffrin Township v. Pennsylvania Public Utility Commission, 115 Pa.Cmwlth. 131, 539 A.2d 925, 927 (1988), where we concluded that evidence of local pedestrian use of sidewalks located on a rail-highway crossing is sufficient to support PUC's allocation of responsibility for snow, ice and debris removal from those sidewalks to the local municipality. Accordingly, we conclude that on the evidence of record, PUC could have reasonably determined to allocate responsibility for sidewalk snow, ice and debris removal to the Township. We further conclude that PUC's allocation of costs and...