Pennsylvania Dept. of Transp. v. Pennsylvania Public Utility Commission

• Decision Date: 10 March 1972
• Citation: 284 A.2d 155,3 Pa.Cmwlth. 473
• Parties: PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Appellant, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellee, City of Harrisburg, Intervening Appellee, County of Dauphin, Intervening Appellee, Reading Company, Intervening Appellee.
• Court: Pennsylvania Commonwealth Court

Page 155

284 A.2d 155

3 Pa.Cmwlth. 473

PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Appellant, v. PENNSYLVANIA PUBLIC UTILITY COMMISSION, Appellee City of Harrisburg, Intervening Appellee County of Dauphin, Intervening Appellee Reading Company, Intervening Appellee.

Commonwealth Court of Pennsylvania.

Argued Nov. 3, 1971.

Decided Dec. 3, 1971.

Application for Allocatur Denied March 10, 1972.

Herbert G. Zahn, Asst. Atty. Gen., Dept. of Transportation, Harrisburg, for appellant.

Larry Gesoff, Asst. Counsel, P.U.C., Harrisburg, for appellee.

Francis B. Haas, Jr., City Sol., Harrisburg, for City of Harrisburg.

Leonard Titner, Asst. County Sol., Harrisburg, for County of Dauphin.

Joseph M. O'Malley, Philadelphia, for Reading Co.

Before BOWMAN, President Judge, and CRUMLISH, KRAMER, WILKINSON, MENCER and ROGERS, JJ.

WILKINSON, Judge.

This is an appeal from an Order of the Public Utility Commission (Commission) issued October 5, 1970. The proceedings before the Commission were initiated by the City of Harrisburg (City) by the filing of a complaint which averred, Inter alia, that the 17th Street bridge over the tracks of the Lebanon Valley branch of the Reading Company had deteriorated to such a point that public safety required its replacement. The cost of replacing the bridge was estimated to be $368,000, and the City asked that the cost of such replacement be allocated among the Pennsylvania Department of Transportation (PennDOT), the County of Dauphin, the Reading Company, and the City. The bridge had been constructed in 1909 by the City and the Reading Company. It extends over two main tracks and one siding track. The bridge is a two-lane structure for traffic with pedestrian walkways on each side. It is in close proximity to Interstate 83, a major interstate artery passing through the City, constructed in 1961, with exit and entrance ramps at the southern end of the bridge. By March 26, 1969, the bridge had deteriorated to the point that it was temporarily closed to traffic.

In response to the City's complaint, a hearing was held by the Commission on September 2, 1969. Following this hearing, the Commission entered an order requiring that the City repair the bridge as soon as possible so that it would safely support traffic not exceeding four tons, that the City submit plans and cost estimates for rebuilding the bridge, and that a hearing be held thereaftr to approve the plans and allocate the cost. On June 22, 1970, a hearing was held to consider the plans submitted by the City and testimony was submitted concerned primarily with the need for a new bridge, the type of structure, and the allocation of the estimated cost of construction in the amount of $368,000.

On October 5, 1970, the Commission ordered the bridge rebuilt and costs were allocated among the parties. The County of Dauphin was ordered to pay $70,000 of the total cost, the Reading Company $30,000, and PennDOT $150,000. The City was ordered to pay all remaining costs for reconstruction of the bridge. It is from this order that PennDOT appeals.

There are two issues raised by PennDOT in this appeal: first, whether the Commission may legally allocate any of the cost of a highway-rail improvement against PennDOT where the bridge and highway passing over it are not, and never have been, a part of the State Highway system; second, whether the Commission in the instant appeal abused its discretion in allocating $150,000 of the highway-rail crossing improvement cost to the Commonwealth.

Taking the issues in the order presented, we agree with the Commission and the appellees that the Commission has the jurisdiction and power to allocate costs to PennDOT. The Commission's authority to act in this case is found in Sections 409 and 411 of the Public Utility Code, Act of May 28, 1937, P.L. 1053, Art. IV, as amended, 66 P.S. §§ 1179 and 1181. Section 409(c) gives the Commission exclusive power to order any highway-rail crossing relocated, altered, or abolished andIn addition, order such work to be performed in whole or in part by any public utility or municipal corporation or By the Commonwealth. There is no limitation in this section restricting the Commission's jurisdiction over the Commonwealth to those highway-rail crossings that involve only highways that are part of the State Highway system. This section gives the Commission jurisdiction over the Commonwealth to impose costs under Section 411 regardless of the designation of the highway involved, i.e., State highway, county road, or township road.

PennDOT argues that the Act of May 6,...