181 Pa. Super. 84 | Pa. Super. Ct. | 1956
Order
The orders of the Pennsylvania Public Utility Commission of December 12, 1955, are affirmed, at appellants’ costs. The opinion of this Court will be filed at a subsequent date.
Opinion by
July 5, 1956:
On May 28, 1954, the Department of Highways of the .Commonwealth filed its application with the Pennsylvania Public Utility -Commission. for-the alteration
The present construction program is the response of the Department of Highways of the Commonwealth to an insistent public demand for the solution of serious traffic problems in the area. All parties agree (to quote from the brief of one of the appellants), that “The point of greatest traffic congestion is the inter
The Limited Access Highways Act of May 29, 1945, P. L. 1108, 36 PS §2391.1 defines a limited access highway “as a public highway to which . . . the traveling public have no right of ingress or egress to, from or across such highway, except as may be provided by the authorities responsible therefore.” Section 2(a) of the Act as amended by the Act of June 10, 1947, P. L. 481, 36 PS §2391.2 authorizes “The Secretary of Highways, with the approval of the Governor ... to declare any State highway route, or part thereof, now or hereafter established, to be a limited access highway”; and the same section provides (b) “Whenever the establishment of a limited access highway will facilitate the movement of traffic the Secretary of Highways, with the approval of the Governor, is hereby authorized to lay out new highways, take over existing highways, or parts thereof, and declare the same to be a limited access highway to be constructed and maintained as a State Highway.” As a solution to the present problem
By §409 of the Public Utility Code of May 28, 1937, P. L. 1053, amended by the Act of May 25, 1945, P. L. 1012, 66 PS §1179, the Public Utility Commission was vested with exclusive power in relation to the relocation of the crossing of Legislative Route 204 over the Pennsylvania Railroad together with Ramp A leading therefrom, as well as the alteration of the crossing under grade of the Pittsburgh & Lake Erie Railroad, and the appropriation of property incident to these crossings. Accordingly, on May 28, 1954, by application filed with the Commission, docketed at 81263, the Department of Highways sought Commission approval of the alteration of the P. & L. E. Railroad crossing. And by a second application, filed the same day and docketed at 81264, Commission approval was sought for the construction of the Pennsylvania Railroad crossing.
Application 81263 came on for hearing before the Public Utility Commission on September 24, 1954. The Borough of Bridgewater appeared and its present counsel represented the interests of the borough throughout the hearing on that date and at adjourned hearings on April 12 and April 22, 1955 and on July 11, 1955. Keystone Bakery Inc. (appellant in No. 49) protesting the Highways Department’s application 81263 participated
A hearing on application 81264 followed the hearing on application 81263 at the Court House in Beaver on September 24, 1954. The Borough of Bridgewater did not appear and was not represented at the hearing on this second application. On April 4, 1955, the Commission issued its order approving the application of the Department of Highways at 81264 and ordered the construction of the crossing and the bridge in accord
In appeal No. 46 the Borough of Bridgewater con- . tends for a reversal of the order in 81264 alleging that the record does not support the finding that “adequate and proper notice” was given the borough of the hearing .on that application on September 24, 1954.. Other questions are raised by this appellant, and by the borough and by Keystone Bakery Inc., in their appeals Nos. 45 and 49: -In áll of these appeals the Department of Highways intervened as an additional appellee., Wé refused supersedeas,, and .on April 18,. 1956, we affirmed the-orders of, the/Commission,'stating' that an opinion setting forth our reasons for our affirmance' would •■be
Perhaps the most serious question raised in any of these appeals is whether Bridgewater had advance notice of the hearing on application 81264. These are the proofs: A letter dated June 22,1954, addressed to H. H. Romigh, Burgess of The Borough of Bridgewater gave notice of a “conference and investigation” to be held on June 30, 1954, with a request to “have a representative present if you are interested in the proceedings.” The letter was signed by Merle A. Forst, “Advanced Railroad Engineer” of the Public Utility Commission. A copy of the letter was also mailed to the Secretary of the Borough. The caption of this letter referred specifically to both applications of the Highway Department in the language quoted in the margin.
The reference to application 81264 in the caption of the above letter of June 22, 1955, did not give notice specifically of the contemplated bridge across the Beaver. But clearly from this letter together with other evidence in this record, Bridgewater Borough, through its agents, either had actual knowledge of the scope of the application or were put on inquiry which would have developed the fact that the bridge was a part of the “First Stage” of the construction program of the Highway Department. The Commission’s letter stated that a field conference on both applications would be held on Jtme 30, 1954 at 10:30 a.m. at the site of the undergrade crossing in Bridgewater, and that all parties interested would proceed thence to the Pennsylva
The Commission did not err in refusing to consider alternate routes for the solution of the traffic problems involved. Initially, whether any part of a State Highway is dangerous and inconvenient to the traveling public is a question for the State Highway Department. Under §§206-208, 210 of the State Highway Law of June 1, 1945, P. L. 1242, 36 PS §670-206, et seq. the Secretary of Highways has full power to change the location of a highway in such manner as in his discretion may seem best in order to eliminate dangerous conditions or inconvenience to the traveling public. And in general one who is not entitled to damages under the law, must address his complaint to the Secretary of Highways. It is only where the change in the course of a part of a highway involves the relocation or abolition of crossings of the facilities of public utilities that the Public Utility Commission has authority to question the decision of the Highways Department in making the change. The jurisdiction of the Commission when it attaches is exclusive under §409 of the Act, supra. But while the Commission’s jurisdiction in crossing cases is exclusive, it is not unlimited. In giving jurisdiction to the Commission as to crossings, the legislature certainly did not intend “to take from the Department of Highways all jurisdiction in the relocation of state roads and commit that control to another agency”: Somerset County v. P. U. C., 132 Pa. Superior Ct. 585, 599, 1 A. 2d 806. • The question before the Commission here is not whether the Secretary- of Highways, in his discretion might have adopted a different location for a limited-access highway to avoid the bot:.
After full consideration of the testimony before it, the Commission determined that the alteration of the crossing “in accordance with the general plans submitted of record at this hearing held September 24,1954 as Applicant’s Exhibits Nos. 2 and 3, revised ... is necessary or proper for the service, accommodation, convenience or safety of the public . . .” Accordingly, in its order of December 12, 1955, application 81263 was approved. A like finding and determination was made on application 81264 which was reaffirmed by the Commission on December 12, 1955. The basis of the Commission’s action in cases of this kind is the interest of the public. Arsenal Board of Trade v. Pa. P. U. C., 166 Pa. Superior Ct. 548, 554, 72 A. 2d 612. And there can be no valid objection to the Commission’s orders which will relieve traffic congestion in the area even though the change might result in personal inconvenience to some residents in Bridgewater. However, there is no evidence of positive injury nor even of serious inconvenience to any of the 1500 people of Bridgewater in these cases. The appellant bakery is the only industry in this small borough. Of 20 trucks which deliver its products to deal
A bridge according to the statutory connotation of §101 of the Act of May 28,1937, P. L. 1019, as amended, includes “The actual bridge and the approaches thereto” and certainly an elevated crossing, connecting with a bridge with a descending ramp, includes the bridge as a part of the crossing and the Commission so considered it. So also in the proceeding on application 81263 for alteration of the underpass the Commission had in contemplation much of the limited-access highway between the bridge and the underpass, together with the connecting ramps. The question of safety and convenience of the public in the use of the crossings includes the approaches to them. Cf. Pgh. & Shawmut R. R. Co. v. Pa. P. U. C., 141 Pa. Superior Ct. 233, 14 A. 2d 903.
As affecting the public interest, contrary to the appellants’ contentions, the evidence demonstrates: that safe and convenient passageways will be available to school children of Bridgewater who attend schools in Beaver; the aged and infirm will not be required to use the pedestrian overpass to reach the P. & L. E. Railroad station; and the embankment upon which the limited-access highway will be constructed will not add to the hazard of.flood waters; the-closing of Bridge Street at .the P. & L. E. Railroad will not result in inconvenience to any one since a new highway will give access
As an administrative body the Commission is bound by the due process provisions of constitutional law and by the principles of common fairness. West Penn Power Company v. Pa. P. U. C., 174 Pa. Superior Ct. 123, 100 A. 2d 110. There is nothing in this record which approaches unfair treatment of these appellants, or the public generally, by the Commission and certainly there was no denial of due process. There is no merit in the contention to the contrary.
The scope of our review in these appeals from the above orders is within restricted limits. An order of the Commission may not be vacated or set aside “except for error of law or lack of evidence to support the finding, determination or order of the Commission, or violation of constitutional rights.” Section 3, Public Utility Law of May 28, 1937, P. L. 1053, as amended, 66 PS §1437. We may not exercise our independent judgment nor weigh conflicting evidence. Horn’s Motor Express, Inc. v. Pa. P. U. C., 148 Pa. Superior Ct. 485, 26 A. 2d 346. Section 1112 of the Act, 66 PS §1442, provides that whenever the Commission makes an order, on the authority of the Act, it shall be prima facie evidence of the facts found. We need not prolong this opinion by reviewing the testimony to demonstrate that the determination and orders of the Commission are supported by substantial competent evidence. The questions before the Commission were administrative and its orders on the merits are supported by sufficient evidence with rational probative force. The orders are far from being capricious or arbitrary and therefore may not be disturbed by this court for lack of evidenciary support. So also, there is no merit in the complaint that the Commission failed “to make necessary
In lieu of the provision as to costs in our order of April 18, 1956, affirming the orders of the Commission, each party in these appeals is now directed to pay its own costs.
The original and existing State Highway Route 76 extends in a general northwesterly direction from the City of Pittsburgh along the Ohio River to Monaca Borough, thence across the Ohio River to Rochester Borough, and via Rhode Island and Brighton Avenues to Conway Corners in that borough. The original Route 76 extends thence by way of an existing bridge across the Beaver River to Bridge Street in Bridgewater Borough; and thence under grade of the P. & L. E. railroad tracks connecting with a State highway at Third Street in the Bprough of Beaver.
The bridge across the Beaver will have a roadway width of 60 feet between curbs with a “four-foot divisor” in the center line of the cartway. The magnitude of the structure is indicated by its cost of about 2 millions. No sidewalks are contemplated either on the bridge or on the ramps leading to it, for the reason that the entire bridge improvement as contemplated will be an integral part of a limited-access highway.
“In re: A81263 — Application of the Department of Highways for approval of the alteration of the crossing where State Highway Route 76 crosses below the grade of four tracks of The Pittsburgh & Lake Erie Railroad Company, located partly in the Borough of Bridgewater and partly in the Borough of Beaver, Beaver County, and the allocation of the costs and expenses incident thereto.
A81264 — Application of the Department of Highways for approval of the construction of a crossing where State Highway Route 204, relocated as proposed, and the proposed highway known as Ramp ‘A’ leading therefrom, wiU cross above the grade of four tracks of The Pennsylvania Railroad Company, in the Borough of Rochester, Beaver County, ánd tho allocation of the Costs and ex.penses incidént tlieretó.”