55 Pa. Commw. 576 | Pa. Commw. Ct. | 1980
Opinion by
This is an appeal by Consolidated Rail Corporation (Conrail) from an order adopted on October 4,
This case arose as a result of a PUC order adopted on its own motion on February 24, 1978, to investigate the structural adequacy and load bearing capacity of the Byberry Eoad Bridge. Conrail, the City, the Pennsylvania Department of Transportation (DOT), and the Trustees of the Eeading Eailroad (Eeading) were designated as parties and were directed to answer interrogatories concerning the bridge and its condition and maintenance responsibility. The City was required to close the bridge to vehicular traffic and Conrail was ordered to repair the deck sufficiently to maintain passenger automobile traffic after which the bridge would be reopened. A formal hearing to apportion the costs and future maintenance responsibility was held on July 18,1978, before Administrative Law Judge F. Eoss Crumlish (ALJ).
The background of the instant case is as follows:
Byberry Eoad was opened by jury in 1720. By an ordinance dated April 4, 1904, the City authorized the New York Short Line Eailroad Company (Short Line) to construct a bridge carrying Byberry Eoad over its tracks at its sole cost and expense and to forever maintain the structure. Subsequently the Short Line was made part of Eeading. Eeading went into reorganization under the federal Bankruptcy Act
In his Initial Decision dated March 30, 1979, the ALJ concluded, inter alia, that neither the City nor DOT
The PUC heard oral argument on July 16, 1979. It adopted the ALJ’s Initial Decision and denied Conrail’s exceptions. Conrail appealed to this Court.
Conrail asserts that the. PUC erred as a matter of law in imposing all the costs of repair and future maintenance on Conrail, that the PUC abused its discretion in imposing the costs on Conrail, and that, based on the entire record, the PUC’s order is not just and reasonable.
At the time this instant case began, our scope of review was limited by Section 1107 of the Public Utility
(a) The compensation for damages which the owner of adjacent property taken, injured, or destroyed may sustain in the construction, relocation, alteration, protection, or abolition of any crossing under the provisions of this act, shall, after due notice and hearing, be ascertained and determined by the commission. Such compensation, as well as the expense of such construction, relocation, alteration, .protection, or abolition of any crossing, shall be borne and paid, as hereinafter provided, by the public utilities or municipal corporations concerned, or by the Commonwealth, in such proper proportions as the commission may, after due notice and hearing, determine, unless such proportions are mutually agreed upon and paid by the interested parties. (Emphasis added.)6
I
Conrail’s first argument is that the PUC committed an error of law in basing its decision solely on a successor in interest theory. We disagree. In its decision the PUC clearly stated that “any question at
Conrail further argues that it is in fact not the successor in interest to Beading insofar as the maintenance of the bridge is concerned. Conrail contends that it is not responsible for the maintenance because (1) when Conrail was created by the BEBA, the responsibility for maintenance of bridges carrying public highways was not transferred, (2) properties were conveyed “free and clear of all liens and encumberances,” under Federal law
Congress passed the EEEA in order to continue essential rail service in the midwest and northeast regions of the country. Many of the railroads in these areas were insolvent. It was Congress’ clear intention that this rail service be continued and improved.
The PUC’s assessment of bridge repair costs between the old and new owners of a railroad was reviewed by this Court in Pennsylvania Public Utility Commission v. Southeastern Pennsylvania Transportation Authority, 21 Pa. Commonwealth Ct. 106, 343 A.2d 371 (1975), (SEPTA). In affirming the assessment of the new owner, we stated that ‘it is the presence and ownership of the track involved, not any benefit conferred which places liability on the railroad.’ (Citations omitted.) Id. at 111, 343 A.2d at 374. SEPTA clearly applies to the case at bar. While Conrail may contest ownership of and maintenance responsibilities for the bridge, it can hardly contest ownership of the railroad tracks.
II
Conrail asserts that the PUC failed to consider all the relevant evidence and abused its discretion in imposing costs of maintenance of the bridge solely upon Conrail. We disagree.
Conrail claims that the age of the structure, the daily rail and vehicular traffic and the causes of the bridge’s present condition should have been considered. While it is true that the PUC may consider many factors in apportioning costs, the only require
Although the costs of the initial repairs and continued maintenance are on Conrail, the burden of the maintenance has been appreciably lessened by the weight restriction. The burden on the City has correspondingly been increased because it must maintain a detour for those vehicles greater than three tons as well as continue to maintain the approaches to the bridge.
Ill
Conrail claims that based on the entire record the PUC’s order is unjust and unreasonable and that the case should be remanded. We again disagree. An examination of the record shows that the PUC gave opportunity for all interested parties to testify and submit evidence. The record reveals that the bridge was built at the request of the railroad so that its trains could travel unimpeded through this section of the City. By operation of the KR.RA, Conrail has become the owner and user of the tracks.
We do not feel that Conrail has carried its heavy burden to show that the PUC order was so unjust or unreasonable that it amounted to an error of law. We find that there is substantial evidence on the record to support the order of the PUC.
Accordingly, we affirm the PUC order adopted October 4,1979.
And Now, this 23rd day of December, 1980, the order of the Pennsylvania Public Utility Commission adopted October 4, 1979, directing the Consolidated Rail Corporation to pay the costs incurred by it and by the City of Philadelphia in repairing the Byberry Bridge and to regularly inspect and maintain the bridge is hereby affirmed.
Act of July 1, 1898, eh. 541, 30 Stat. 544, as amended, 11 U.S.C. §1 et seq., (1976), repealed and replaced by “Bankruptcy Reform Act of 1978,” Act of November 6, 1978, Pub. L. 95-598, 92 Stat. 2549, as amended, 11 U.S.C.A. §101 et seq. (West 1979).
Act of Jan. 2, 1974, Pub. L. 93-236, 87 Stat. 985, as amended, 45 U.S.C.A. §701 et seq. (West Supp. 1980).
In answering the PUO’s interrogatories, DOT disclaimed all responsibility for any costs associated with the bridge because By-berry Road is a city street, not a state highway. It should be noted that the PUC directed DOT to expedite its plans for Woodhaven Road which will be built in the vicinity of Byberry Road. The plans include a new bridge over the same tracks and the subsequent abolishment of the Byberry Road bridge. DOT has not yet had the funds to construct Woodhaven Road.
Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. §1101 et seq., repealed and re-enacted by tbe Act of July 1, 1978, P.L. 598, 66 Pa. O. S. §101 et seq.
66 P.S. §1437 was repealed by tbe Act of April 28, 1978, P.L. 202. A similar provision is now found in Section 704 of tbe Administrative Agency Law, Act of April 28, 1978, P.L. 202, 2 Pa. C. S. §704.
66 P.S. §1181 (a) was repealed and re-enacted by tbe Act of July 1, 1978, P.L. 598 and is now found at 66 Pa. O. S. §2704.
45 U.S.C. §743 (b) (2) (1976).
In Consolidated Rani Corporation v. Interstate Commerce Commission, 590 F.2d 937 (D.C. Cir. 1978), Conrail argued that it should not be bound by a previous order of tbe Interstate Commerce Commission (ICC) concerning the division of joint rates charged traffic which moves on the lines of two or more railroads. The ICC had adopted the order prior to but it was effective after the creation of Conrail. In rejecting this contention, the Circuit Court stated that Congress did not intend that Conrail would be treated any differently than other railroads. The Circuit Court further said that, “There is nothing in the creation or evolution of Conrail suggesting that it is to be immune from regulation which is not financially favorable to it.” Id. at 941.
45 U.S.C. §701 and [1973] U.S. Code Cong. & Ad. News 3242.
49 C.F.R. §1201 (1979).