73 Pa. Super. 294 | Pa. Super. Ct. | 1919
Opinion by
The petitioner is the Borough of East Conemaugh, appellee ; the respondents are the Borough of Franklin, appellant, and the Cambria Steel Company and the Pennsylvania Railroad Company.
The petition averred, inter alia, that under proceedings in the Quarter Sessions of Cambria County in 1891, a bridge was erected over the Conemaugh river “being the line between the Borough of Franklin and the Borough of East Conemaugh” and was subsequently maintained at the joint expense of the boroughs, the County of Cambria and the Pennsylvania Railroad Company; that the bridge is part of a State highway, Route No. 52, leading from Johnstown to Ebensburg, the county seat, and is built over the tracks of the main line of the Pennsylvania Railroad Company and the tracks of the Conemaugh freight yards of that company, as well as the plant railroad tracks of the Cambria Steel Company.
It was alleged that the bridge required repair and renewal-and that the Borough of Franklin had closed the bridge to public travel and was repairing or renewing the part of the bridge in Franklin without the approval of the commission. Irreparable injury to petitioner and its inhabitants was alleged and the commission was asked to order the Borough of Franklin to desist from so interfering with traffic over the bridge, and for such other relief as the commission should deem proper.
The Borough of Franklin answered, denying the jurisdiction of the commission and averring that the part of the bridge in Franklin “does not cross over the tracks of
In view of the conclusion reached by the court, it is unnecessary now to state other averments of the petition and answer.
At the hearing of the complaint by the commission, no testimony was taken; the stenographic report of the hearing certified to this court contains statements of their respective contentions made by counsel for complaint and respondents.
Counsel for the Borough of Franklin stated, inter alia, “We insist that so far as we are concerned the Public Service Commission is without jurisdiction. We take the position that there are no jurisdictional matters that bring it before the Public Service Commission. I want to say here and now and I pledge the Borough of Franklin to build that bridge in accordance with any plans that you may approve. What more can we do?”
Thereupon, a recess was ordered by the learned chairman of the commission to enable the parties to confer. On resuming the meeting the chairman said: “The parties have come to a temporary and tentative agreement by which the public may be accommodated pending the decision of the larger matter involved, and I will ask counsel to state upon the record the conclusions reached.” Counsel for the boroughs then reported that the parties had agreed to do certain things which were stated somewhat generally. The record closes with some apparently slight qualification by the commission of what counsel stated, ending as follows: “Let it be noted that counsel for the Borough of Franklin and counsel for the Borough of East Conemaugh agree to all of the foregoing, reserving to counsel for the Borough of
The commission then made the order now appealed from, and to support the appeal appellant now asserts,
(a) that the commission is without jurisdiction, and,
(b) that the order is not in accordance with the agreement.
The petition undoubtedly states a case within the jurisdiction of the commission, Public Service Company Law: Art. V, Sec. 12, Act of July 26, 1913, P. L. 1374, as amended by Act of June 17, 1917, P. L. 1025,'but the essential averments remain to be proved. As has been stated, the agreement of counsel was not specific, nor was the acquiescence by the commission less general. The parties doubtless all acted in good faith but they made a record for review by this court which obviously cannot be the basis of final disposition of the cause.
The statute imposes upon us a duty; is the order reasonable and in conformity with law? The record must sustain the order, and the record at bar is insufficient, as has been suggested.
In view of the importánce of this bridge to the community involved, we have concluded to dispose of this appeal at the first opportunity by the following
order:
The order of the commission is reversed and the record returned to the commission with instructions to proceed with the cause according to law unless the complaint be sooner satisfied.
