207 Pa. Super. 299 | Pa. Super. Ct. | 1966
Opinion by
The appeals in this case are from the final order of the Commission, dated April 20, 1965, apportioning
On October 9, 1861 the Commission disposed of Railways’ application at A.S6353 concerning the Catherine Street crossing in the Borough of Ingram, which order allocating costs was appealed to this Court and affirmed in Pittsburgh Railways Co. v. Pa. P.U.C., 198 Pa. Superior Ct. 415, 182 A. 2d 80 (1962). By order
Thereafter Railways filed a motion to dismiss and be relieved of any further liability in respect to this bridge, since it had abandoned its railway service thereon. On August 12, 1963 the Commission refused Railways’ motion to dismiss.
On December 18, 1963 the Port Authority of Allegheny County (Authority) filed and recorded with the Commission its approved transportation plan, under the Second Class County Port Authority Act of April 6, 1956, P. L. (1955) 1414, as amended, 55 PS §551 et seq., thereby obligating the Authority to acquire and operate the transportation system of Railways, under a target date of March 1, 1964. Thereafter the Authority proceeded to acquire Railways’ “transportation system.” See Pittsburgh Railways Co. v. Port of Allegheny County Authority, 415 Pa. 177, 183, 202 A. 2d 816.
On April 20, 1965 the Commission entered the final order which is the basis of the present appeals, directing the Borough to proceed with the construction of Black’s Bridge, and allocating the costs of construction as follows: City of Pittsburgh, 10%; County of Allegheny, 40%; Penna. Railroad, 10%; Borough of Crafton, 10%; Pittsburgh Railways and the Authority, jointly and severally, 30%. Appeals from the assessment have been taken by the Authority and Railways, and the City of Pittsburgh. No appeals were taken by the County of Allegheny, Penna. Railroad or Borough of Crafton; the latter two have been granted leave to intervene as appellees. The Commission further directed that future maintenance costs be paid by the
Railways’ application for a rehearing of the Commission order of April 20, 1965 urged that its assessment be limited to the cost of demolition ($6,000) or 3% of the total cost of $192,857, and that the remainder of 30% or 27% be allocated to the Authority or other interested parties. The Authority also applied for a rehearing, alleging that Black’s Bridge Avas not included in the integrated plan filed Avith the Commission, that the bridge Avas abandoned by Raihvays, Avas not useful in the transportation of passengers and could not be legally acquired by the Authority.
In its appeal Raihvays contends its liability is limited to the cost of demolition of Black’s Bridge since the bridge route has been abandoned; that any imposition of greater costs amounts to a taking of its property without due process of laAV, and that the Commission erred in enlarging its abandonment application into a proceeding for replacement of the bridge. All of the points raised by Raihvays in these proceedings are anSAvered, in substance, by our rulings on similar contentions by Raihvays in the Catherine Street crossing appeal: Pittsburgh Railways Co. v. Pa. P.U.C., supra, and Avhat Ave said there need not be repeated at length here. Thus, Ave pointed out, at pages 423 and 425, that the Commission could properly deal with replacement and repair of a crossing, though the proceeding Avas initiated by a petition seeking abandonment. As Ave stated at page 426, quoting Lehigh & New England R.R. Co. v. P.S.C., 126 Pa. Superior Ct. 565, 191 A; 380: “Those conditions Avhich may have brought about the necessity for a neAV underpass do not operate to relieve appellant. It is a question of providing for public safety by reasonable methods. ... In order to
We shall next consider the appeal of the Authority. Its contention here is that the Commission has no power, under §§409-412 of the Public Utility Law, to assess any portion of the expenses incident to the alteration, construction, etc. of a rail-highway crossing in this proceeding against it. The Authority says it is not by its nature amenable to such construction costs; further, that it acquired no facility of Railways connected with Black’s Bridge.
The Authority is a municipal corporation, as defined in the Public Utility Law, §2 (15), 66 PS §1102, as including “all cities, boroughs, towns, townships, or counties of this Commonwealth, and also any public corporation, authority or body whatsoever created or organized under any law of this Commonwealth for the purpose of rendering any service similar to that of a public utility.” (Emphasis supplied) Admittedly, the Commission’s power to allocate costs in rail-highway crossing situations must be found in §§409-412 of the Public Utility Law: Delaware River Port Authority v. Pa. P.U.C., 393 Pa. 639, 643, 145 A. 2d 172. There the Court held the Commission did not have the power to assess a particular type of costs, viz., the cost of relocation of lines of non-transportation utilities, against an Authority. This was because such relocation costs were payable by the non-transportation utility at common law, and no power on the part of the Commonwealth to assess such costs in rail-highway crossing proceedings could be found in the statute. However,
We find nothing in the Second Class County Port Authority Act of April 6, 1956, P. L. 1414, as amended, 55 PS §551 et seq., which would interfere with the Commission’s power to allocate rail-highway costs against an Authority. It is clear that §§409 and 411 of the Public Utility Law, supra, give the Commission the power to allocate costs in rail-highway crossing proceedings against the Authority, as a “municipal corporation” operating a utility, in a proper case.
The abandonment of railway service on the bridge was expressly conditioned upon the issuance of subse: quent orders regarding the alteration of the crossing. Railways initiated the proceedings for abandonment, and.was subject to assessment on subsequent orders as to alteration of the crossing. The Commission may compel publie utilities, municipalities concerned, or the Commonwealth, “jointly or in several allotments” to pay the expense for eliminating grade crossings: Westmoreland Chemical & Color Co. v. P.S.C., 294 Pa. 451, 144 A. 407; Phila. Suburban Water Co. v. Pa. P.U.C., 168 Pa. Superior Ct. 360, 369, 78 A. 2d 46 (1951). The law does not require that the total expense be prorated among the respective parties upon a percentage basis; the only requirement is that the order be just and reasonable: Erie R.R. v. P.S.C., 271 Pa. 409, 114 A. 357, and of course the party must be concerned.
The allocation of 10% of construction, costs and 50% of maintenance against the City of Pittsburgh, is supported by evidence. As stated, the bridge was 59% in the City of Pittsburgh and 41% within the Borough of Grafton. The duty of allocating costs is primarily a matter within the administrative discretion of the Commission and its order will not be. reversed if reasonable and in conformity with law: Tarentum Bor
The order of the Commission making a joint and several assessment of 30% of the costs of construction against Railways and the Authority must be reversed. Although the plan of acquisition was on file with the Commission, whether or not the Authority acquired rights and succeeded to liabilities as to Black’s Bridge crossing, does not appear clearly of record in these proceedings. Counsel for the appellant Authority attempted to show throughout the proceedings, especially at the May 8, 1964 hearing, that it did not, and could not, legally acquire Black’s Bridge crossing or franchises thereunder, since this route had been abandoned prior to the Authority’s acquisition proceedings. The Commission uniformly excluded this evidence as irrelevant.
Undoubtedly the Commission has jurisdiction and power, in a proper case, to assess the Authority for costs in rail-highway crossing proceedings, under §§409 and 411 of the Act. However, the Commission’s order must be supported by evidence: Aizen v. Pa. P.U.C., 163 Pa. Superior Ct. 305, 60 A. 2d 443. It is difficult to see how the acquisition of the “transportation system” and bulk of assets of Railways by the Authority, could impose liability on the Authority for any part of the crossing alteration and construction cost, in this proceeding involving only Black’s Bridge. Liability must be determined upon some sound legal or factual basis, and cannot be predicated upon general commission policy: West Penn Rys. Co. v. Pa. P.U.C., 135 Pa. Superior Ct. 89, 99, 4 A. 2d 545. The case of Yezioro v. N. Fayette Co. Municipal Authority, 193 Pa. Superior Ct. 271, 164 A. 2d 129, does not support liability
The consistent refusal of the Commission at the May 8,1964 hearings to allow the Authority to present evidence as to whether the Authority acquired any rights or obligations as to this crossing, was error. Evidence is certainly available as to what rights and liabilities passed to the Authority from Railways in the acquisition and condemnation proceedings. The Commission is the only body to determine, upon proper evidence, the basis and extent of the liability for assessment of construction, etc., costs in rail-highway crossings: Delaware River Port Authority v. Pa. P.U.C., supra. Here the evidence is not clear and does not support the Commission’s allocation of costs directly against the Authority with respect to Black’s Bridge crossing. The Commission, by its joint and several assessment against the Railways and the Authority, has endeavored to follow the bulk of the assets acquired by the Authority from the Railways. Both the Supreme Court and our Court have held that a lieu holder’s vested interest in property thereafter condemned for a public purpose is transferred by the act of condemnation from the property itself and applied to the damages or award: Goodman v. City of Bethlehem, 323 Pa. 58, 185 A. 719; Ferguson v. Pittsburgh & S. R.R. Co., 253 Pa. 581, 98 A. 732; Woods Run Avenue, 43 Pa. Superior Ct. 475.
A similar result is provided for under the Port Authority Act here involved. Section 7.1 of the Act of 1959, P. L. 1266, 55 PS §557.1, provides as follows: “When the authority exercises its right of eminent domain, it shall, prior to taking possession of the property, pay into the court of common pleas of the county in which said authority is created in the manner to be provided by the rules of court, a sum equal to seventy-five per centum (75%) of the amount estimated by it
Since the assessment was made jointly against the Authority and Railways, the record must be remanded for new assessments to be made in the light of such evidence as may be produced. The allocations against the parties who have not appealed, and against the City of Pittsburgh, are within the Commission’s discretion, and presumably will not be changed, although, on remand, the Commission has power to change any or all assessments.
Reversed and remanded for further proceedings in accordance with this opinion.