Friends of the Atglensusquehanna Trail, Inc. v. Pennsylvania Public Utility Commission
717 A.2d 581
Pa. Commw. Ct.
1998
Check Treatment

*1 Fund, particularly un argues benefits from the statute of limitations.5 The Fund case, Employer standing peti file a In has no to der the facts of this case. did, and, if it specific tion under Section 306.1 even was awarded loss benefits Claimant payments benefit af Employer’s Claimant paid Employer that were to be expiration specific period loss ter the 20, August Upon expiration until 1973. 1973) (i.e., 20, August after did not toll date, Employer’s obligation on that Claim agree statute of limitations. We option petition had the Fund for ant Employer has no stand Commonwealth continuing benefits under Section 306.1. For 306.1, petition to file a under unknown, Employer reasons continued to not, not, therefore need and do reach the an pay benefits to Claimant for additional tolling issue of the of the statute of limita (20) twenty years peti never Claimant tions. However, Fund. tioned for benefits from the Employer argues now that the Fund should statute, construing meaning In of a we payments it for reimburse its Claimant Statutory must observe rules Con- eligible to file for ben because Claimant was 1972, struction Act of Pa.C.S. 1501- Employer’s from the Fund in 1973. efits doing so would result unless responsibility, predicament is not Fund’s interpretation that is inconsistent expect the Fund to “bail it cannot out” Assembly. Pennsylva- intent General making payments because it failed to cease Pennsyl- nia Association Milk Dealers v. obligation to Claimant when its to do so Board, Marketing vania Milk 685 A.2d 643 20, 1973. expired August on (Pa.Cmwlth.1996). Two such rules are set 1903(a) 1921(b), § § forth in 1 Pa.C.S. Accordingly, the order of the Board is which mandate that the words of a statute be affirmed. according plain construed to their and com- meaning they mon where are clear and free ORDER ambiguity. ap- from Id. One such word NOW, day August, AND this 18th pears key passage 306.1, in a of Section Compensation Ap- the order of the Workers’ follows: above-captioned peal Board matter is payments by After the cessation of hereby affirmed. employer period pre- for the of weeks (c) scribed clause of Section

subsequent injury, compensation additional paid during

shall be the continuance of disability_

total This additional com-

pensation paid by department shall be the ATGLEN FRIENDS OF subsequent injury

out of the All fund.... SUSQUEHANNA TRAIL, compensation claims for such additional INC., Petitioner, employ- shall be forever barred unless the petition ee shall have filed a therefor with department.... PENNSYLVANIA PUBLIC UTILITY added). (emphasis 77 P.S. Because COMMISSION, Respondent. clearly unambiguously the statute states Pennsylvania. Commonwealth Court of compensation that all claims for from the employe,” Fund filed “the we must be Argued April 1998. employer conclude that an does not have Aug. Decided 1998. standing petition file benefits the Fund.

Furthermore, common sense dictates standing employer has no to file a claim for a Section 306.1. See footnote 3 brief discussion tolling applicable of limitations of the statute *3 Nettke,

Joyce A. Strasburg, petitioner. for Colwell, Harrisburg, respon- Susan D. dent. Eaton, Harrisburg,

David C. for interve- nor, Corp. Rail Consol. COLINS, Judge,
Before President McGINLEY, SMITH, PELLEGRINI, FRIEDMAN, KELLEY and LEADBETTER, JJ.

SMITH, Judge. Trail, Atglen-Susquehanna

Friends of the (FAST) petitions Inc. for review of an order Pennsylvania Commis- (Commission) sion that with minor modifica- adopted the tions decision of an Administra- (ALJ) Judge approved tive Law two (Settlements) Stipulations of Settlement (Conrail) Corporation Rail the Consolidated townships entered into with seven in Lancas- County Pennsylvania ter and with the De- (DOT). partment Transportation rail-highway crossings The of the abolition of 31 permit- along to the Enola Branch. was Settlements relate abolition rail- highway along May ted crossings the former Enola to intervene in 1994. On March rail line to the Branch transfer Con- the Commission issued an order abol- property. ishing crossings listing rail’s others separate A hearing. proceeding involving a questions whether the Commission single crossing was consolidated preempted ordering the demolition larger case. matter was submitted bridges by of historic Interstate Commerce dispute proceedings, alternative resolution (ICC) Transporta- Surface and, negotiations, parties after extensive (STB) orders; tion Board whether Com- agreed at the Conrail arrived Settlements. complied History Code, *4 convey in the Settlements to the entire rail 101-906; §§ Pa.C.S. whether the Commis- segments townships through line in to the including sion erred this case in a passed give township it a which each adopted on cases it moratorium such money lump of related to the condition sum bridge the policy to of Governor’s crossings. majority of The the cross- preservation; the whether Commission com- kept place; to in structures were be Act, plied the Rails to Trails Act of however, to re- some were scheduled 18, 1990, 748, 32 December P.L. P.S. safety moved for reasons. 5611-5622; and whether the Commis- bridges sion’s conclusion that certain are objected, and the ALJ held FAST span supported near the end of their life in hearings June 1997. The Historic Preser by substantial evidence. The Commission (Lancaster County Trust of Lancaster vation standing questions ap- whether FAST has to Trust) joined opposition. in FAST’s brief peal. Department The Conservation and of Natu (DCNR) approved ral Resources of the Set Conrail filed notice with the ICC Octo- adopting The issued an order tlements. ALJ ber of its intent to abandon the Enola 1989 Settlements, slightly, Sep the on as modified Branch, primarily through which runs seven 23, 1997, September tember 1997. On In an townships County. Lancaster order STB, ICC, the the to issued an successor February 14, of the authorized ICC it, proceeding reopening order the before subject of to termination rail service condi- to denying request FAST’s extend histor including not transfer the tions that Conrail preservation ic to the entire Enola condition property steps and alter his- take no to preser reaffirming Branch and the historic integrity bridges toric on the line until slightly vation condition modified. as Sever completion process historic review un- parties to AL exceptions al filed J’s der of the National Section 106 Historic final order the Commission entered its Act, § 470f. Preservation 16 The U.S.C. 9, 1997, only from which FAST now October Pennsylvania Historical and Museum Com- appeals.1 (Historical Commission) commenced álong a review of the the Enola structures I part process, 106

Branch as Section through but failed to when it follow Conrail to turns first Court required In a sent in information. decision request quash petition for this Court 19, 1993, April the ICC authorized Conrail review based on its contention line but made no mention of abandon standing appeal. lacks The Commission concerning 106 re- condition citizen-based, acknowledges a that FAST is process. view not-for-profit organization formed Branch to application purpose acquiring filed Enola Conrail Com- preserve resources September approval the natural historical mission on Cab a or a violation. Yellow Co. 1. This Court's review of decision of Com- constitutional determining mission is limited to whether Pittsburgh Pennsylvania Commis- supported by necessary findings are substantial (Pa.Cmwlth.1996). sion, 673 A.2d 1015 there an error law evidence whether Conrail, negotiating provide multiple-use funding and of this corridor and to a transportation approval of the Settlements re- greenway for non-motorized asserts opportunity and recreation for all residents of Lancaster in the loss of for FAST sults however, notes, County. carry The Commission out its mission. FAST con- that, uniquely group, that under Section 702 of the Administrative a trails it is tends Law, Agency only person relating § a to the qualified present Pa.C.S. issues adjudication Also, aggrieved by agency standing who is Rails to Trails Act. claims may appeal. and has a direct interest therein 512 of the Historic Preser- based on Section Act, 512,2 provides vation 37 Pa.C.S. The Commission cites the standard articu- entity part any “person legal or other Pennsylvania Supreme lated Court maintain an action an administrative Parking City Garage, William Penn Inc. v. protection preser- tribunal or court for the Pittsburgh, 464 Pa. 346 A.2d any vation of historic resource in this Com- (1975). standing appeal party To have monwealth.” subject must have a direct interest matter; interest must be immediate agrees that has The Court pecuniary, consequence not a remote First, bring appeal. there is standing to judgment, and the interest must be substan- question possesses no that FAST such stand simply tial and not the common interest of all *5 ing by of as is conferred Section 512 the procuring citizens obedience to the law. Historic Preservation Act because it is seek The Commission asserts that FAST has no ing that Act and federal to enforce both laws interest, noting immediate or substantial relating policies preservation. to historic FAST does not own the land or have a Second, group concededly as a trails that has expectation owning reasonable of the land acquire exerted substantial efforts to agreements because of the between Conrail issue, rail at convert the line FAST has townships. and the The Commission also the Rails to Trails Act that is interest under permission stresses that for FAST to inter- direct, and it is well situated to advance the standing appeal. vene did not confer “Ad- concerns of that Act. mission as an intervenor will not be con- recognition by strued as the Commission that II

the intervenor a direct has interest the proceeding might aggrieved by or an or- subject contends that the mat- first proceeding.” der of the Commission jurisdiction ter was 5.75(b). § 52 Pa.Code preempted by the the and the orders of ICC issue, STB, standing provided

On the merits of the the where the Settlements requirement bridges. FAST notes that the of a “sub demolition of certain The Commis- simply authority crossings stantial” interest means that must sion’s over abolition of have substance —there must be some discer derives from the mandate of Section 2702 of Code, nible adverse effect to some interest other the Public 66 Pa.C.S. 2702. (b) general having than the the interest others Subsection vests Commission with comply power prescribe, with the law. Penn Park “to determine and William exclusive Inc., ing Garage, by regulation at ... manner in 464 Pa. at 346 A.2d or requirement [rail-highway] crossings may be con- 282. The that an interest be which structed, altered, relocated, simply person suspended “direct” claim means of aggrieved prevention to be must show causation of abolished ... to effectuate the safety of by promotion the harm the matter of he or she accidents and the on this complains. public.” Id. to the evidence The ALJ concluded FAST refers jurisdictions purchase question in the record of efforts to of STB its independent and preserva Enola Branch for recreational and and the Commission are other, including noting of each that there is purposes, securing tion substantial exclusive Code, Chapter History 501. 5 of the 37 Pa.C.S. tion Act 501-512, designated is the Historic Preserva- merce, formally ap- requirement preempt the STB did not no a rail prove authority crossings assign of line before abandonment abolish permitted to abol- Commission is authorize responsibilities, maintenance in the course of rail-highway crossings. of The ishment safety crossings. of regulating the The analysis. agreed further *6 Co., gress.’” English v. General Electric erty and of some the eventual demolition 72, 79, 2270, 2275, 110 496 U.S. 110 S.Ct. require bridges, the took care to Commission (1990) (quoting 65 Davi L.Ed.2d Hines v. completion of the proceed that Conrail dowitz, 67, 404, 399, 312 61 85 U.S. S.Ct. compliance process in Section review (1941)). L.Ed. 581 FAST that con asserts thereby it the STB avoided the preemption applies flict here to divest any possible conflict between the state jurisdiction until the Section Commission of regulatory differ agencies, federal with their process complete. 106 review priorities ent and concerns. Transp., cites Inc. Commission CSX Commission, Pennsylvania Utility v. Public III 902, appeal 125 Pa.Cmwlth. 558 A.2d Next FAST that the Commission denied, (1989), contends 523 Pa. 567 A.2d 654 requirements of the comply did not a rail the where carrier asserted that Com- History Code, arguments the incorporating assigning preempted Trust, in the advanced brief of Lancaster regard the responsibilities maintenance to it in does not which assert that the Commission a line for the ICC crossing on which specific plan regarding com- have a written approved had abandonment. This Court Historic Pres- authority pliance with the held that over abandonment ICC Act, amended, lines, 508.3 regulating eom- Pa.C.S. of rail in the course ervation as "[¡Initiate (a) procedures provide provides that 3. Section 508 subsection measures (1) agencies the by preservation, Commonwealth shall consult for the maintenance means of demolishing, al- “before Historical Commission resources rehabilitation restoration historic or tering transferring any property or under its ownership their or that are or under control” ownership may that is or be of histori- or control “[¡Institute (4) eligible may listing; be for such cal, archaeological significance”; or architectural then- procedures policies to that assure (2) Commission seek advice of Historical codes, plans, programs, regulations and activities demolition, possible alter- "on alternatives preservation contribute to the and enhancement property owner- ation or transfer of ship under their Commonwealth”; all in this historic resources eligible that is or control be Places”; (3) Pennsylvania Register of Historic Although application only to procedures express under 508’s Common- permit agencies. 52 Pa.Code 5.71-5.76 intervention wealth Commission, by the Historical the Lancaster case, although present In the argues procedures pas- that are Trust these jurisdiction to approve Commission has sive nature and not consistent with the rail-highway crossings, abolition of and its History required by action-oriented role regard certainly orders that have effect It states that the Historical Code. Commis- structures, including crossing up on to and opinion during sought sion’s was not requiring parties to them other demolish Settlements, development of the and in the safety public where concerns interest specific procedures absence of internal require, the Commission does not exercise policies acknowledging responsi- required kind held to of control Code, bility History under the the Settle- Also, Goldsborough. State Historic Preser ments are flawed. agreed vation Officer Brenda Barrett he the ALJ when he asked whether should acknowledges The Lancaster Trust O’Con testimony opportunity her consider Pennsylvania nor v. Commis input the Historical Commission to have on sion, 136 Pa.Cmwlth. 582 A.2d 427 application. Conrail’s (1990), opinions held of the His advisory torical Commission are and not IV

binding upon agencies, other but contends preservation the record shows that also asserts that the historic resources involved here has not by including in a erred this case morato adequately. argues been considered It upon rium such cases that was issued preservation-focused perspective is ex poli to the Governor’s tended even further properties when historic cy bridge preservation. FAST notes that “ownership are under the or control” of Com adopted the Commission the 18-month mora agencies likely monwealth or are to be affect 23, 1997, is, torium order of October - 508(1) by agency ed actions under Sections public meeting at its next after the order in (3). this ease. the Commission denied request FAST’s for reconsideration on November agrees The Court with the Commission case, argues that that Goldsborough Department Edu *7 bridges, bridges with 26 ordered to be cation, 487, 133 Pa.Cmwlth. 576 A.2d 1172 demolished and all others at risk under the (1990), 588, (1991), aff'd, 528 Pa. 599 A.2d 645 of the and with a terms Settlements Master applies question. to this There a school dis already prepared Plan for trail use and with sought statutorily trict required approval funding place, perfect is the for inclu ease (DOE) Department from the of Education to addition, in the moratorium. In sion partially demolish and reconstruct a school timing an asserts that the of events creates building eligible Pennsyl for inclusion on the parte inference that ex communications re Register vania of Historic Places. This in the deliberate exclusion of this case sulted Court determined that did DOE not have allega from the moratorium. It bases this property “control” over the within the mean imposing tion on the ALJ’s abbreviated phrase property of the “under their own schedule, briefing period the short allowed (2) 508(1), ership or control” Sections and by filing exceptions for Commission (3) by of the Historic Act Preservation virtue adopted at the fact that the moratorium was Rather, regulatory authority. of its 1997, public meeting the next on October physical ability manage term meant although until not effective December day-to-day operation property 1997. 52 1.14. Pa.Code agency’s make it use of own needs. Therefore, responds that comply DOE did not have to The Commission its decision district, a apply and the school not to the moratorium order to a ease subdivision, political completed that had been is outside the sub- outside Section (5) procedures submit the to the Historical Commission for review and comment. development and use of recreational 1997 order ject of the October matter witness, designer trail FAST’s trails.” The Commission approving the Settlements. Flink, into evidence the A. offered Charles grant requests it not FAST’s notes that did Plan, Trail Master Atglen-Susquehanna appeal period within the reconsideration for Wilson, spon- prepared. Mark which he had the merits of prior order. Should FAST, wit- only engineer was the sored considered, the be of reconsideration denial bridges the rail examined ness who expressed refers to the reasons provided cost crossing public roads and who i.e., had been this case in its need- repairs and modifications estimates proceed- finally after extensive determined engineer witness for trail use. ed to a apply the moratorium ings and that Transportation Bureau the Commission’s been a final order had proceeding (BTS) slope 2:1 Safety conceded rights process violate the due entered would over where structures recommended that he parties. the other very steep removed is a roads were to be agrees that this issue is The Court preferred for trail use. slope, type not of peti presented. FAST did not properly not goes direct- that this issue FAST contends petition its from the denial of tion for review mitigation considered ly the ALJ to whether reconsideration, in which the issue of Trails Act. the Rails to under newly adopted possible applicability of pic- left out of the mitigation is argues that raised. The Commission moratorium was provision Settlement ture 9, 1997 acknowledged in its order of October remov- expressly includes townships that devel policy was under that the Governor’s the definition al of a structure however, there was no at that time opment; it. The ALJ had to “maintain” responsibility moratorium existence the Settle- duty whether to determine if the ease. Even applied to this could interest and to set public ments were merits of the denial reviewed the Court not, provisions that were aside reconsideration, limited to de such review is 508 of authority in Section abused termining whether the Commission Code, § 508. 66 Pa.C.S. Utility the Public Pennsylva J.A.M. Cab Co. its discretion. power to reform authority includes the That Commission, Pa. nia upon utilities a public and revise contracts (1990). Assum 572 A.2d 1317 Cmwlth. fair, basis when the equitable reasonable implies here ing, arguendo, that the record notice and after determines part con intent on the Commission’s obligations are terms of such hearing adopting four-year-old case before general clude public interest adverse to moratorium, amounts argument FAST’s well-being. its disagreement a nothing more than responds that its The Commission This Court could policy decision. such rail-high impact of its duty to consider action consti conclude that Commission’s upon recreational way crossing decisions of discretion. tuted an abuse *8 identify to minimize alternatives trails and to requirement that not a impacts adverse is V any particular the desires accommodate argues also that proposal. The advocating particular a entity Rails to under the fulfill its mandate failed to only 10 of directed removal ALJ’s order 10(b) Act, 32 P.S. Trails Act. Section issue, determin crossing at structures the 25 Commission, be- 5620(b), requires that the safety reasons existed ing that valid any request for the taking action on fore

ORDER NOW, day August,

AND this 18th Pennsylvania

the order of the

Commission is affirmed. COLINS,

Dissenting opinion President

Judge. notes that the STB or- requires only part der conduct on the of that the ICC vested with FAST notes was that, should a conflict Conrail asserts power regulate the broad abandonment arise, petition Conrail could the Commission lines, rail later on the which was conferred extension. quotes Hayfield R.R. STB. FAST Northern Co., v. Chicago Inc. and North Western The concludes that the Com Court Co., 622, 633, Transp. 467 U.S. S.Ct. preempted proceeding- mission not 2610, 2617, (1984), L.Ed.2d where that its is not in this matter and order Supreme [ICC] Court stated: “[U]nless requirements. There is no conflict STB postabandonment to a attaches conditions general jurisdictions question abandonment, au [ICC’sJ certificate crossing the Commission over abolition brings reg thorization an abandonment its over are dif the STB rail line abandonment ulatory Preemption to an end.” Transp., ferent matters. Inc. CSX state law federal law take various conducting .its di proceeding Commission’s forms, notes, including what is known necessary rected toward the ultimate and preemption,” “conflict law ac where state crossings unques disposition of its within tually that it conflicts with federal law such jurisdiction party tioned did violate STB’s impossible private comply for a require the order. “or law an obsta order or Conrail violate both where state ‘stands as accomplishment Although approval will cle to and execution Settlements objectives purpose ultimately prop the full of Con in transfer of Conrail result

Notes

notes The Commission removals. grade a railroad DCNR, or removal of initial re charged abandonment tunnel, suitability bridge “shall consider of this crossing, sponsibility to evaluate development, develop upon the for trail impact action railroad lines of such and other ment, proceedings party recreational existing use of was an active expansion and identify and supports act and the Settlements. pursuant to this trails Rails to Trails any under the minimize duties will Commission’s alternatives which evaluate original mandate remove the upon Act cannot actions of commission impacts adverse COLINS, dissenting. Judge, protect public safety un- President the Commission to 2702(b) of the Public der Section majority’s only far as to the I dissent so Code. V of the conclusions contained agrees This Court that the record opinion. I do scholarly well-prepared did this case shows properly considered not feel that the ALJ obligations comply with its under the Rails the Rails to “mitigating” issues under impact of its action Trails Act to consider Trails Act. identify approving Settlements participation alternatives. extensive I remand to the ALJ for additional would in this case and the admission into and, regarding mitigation findings of fact Plan, well as the evidence of its Master thereafter, propriety a reconsideration participation to the DCNR Com made with the various of the settlements procedures providing notice to mission’s townships. cases, that the ALJ and DCNR such show considered alternatives to proposed ap action. The Commission might proved letting bridges some stand that otherwise have been ordered to be removed any for the benefit of future trail use. The require Rails to Trails Act does not more. VI Finally, FAST contends that the bridges Commission’s conclusion that some span support are near the end of their life option supported for demolition was not by substantial evidence. FAST asserts that testimony the ALJ misunderstood the of its PENN SCHOOL WILLIAM concluding bridges DISTRICT, Petitioner, witness Wilson in had the end of neared their useful lives. The findings, ALJ made over 350 factual most of descriptions which concerned detailed APPEAL WORKERS' COMPENSATION here, bridges condition of each of the at issue (WESTERMAN), BOARD BTS, upon reports based Conrail and Respondent. townships. adopted The Commission findings. these Substantial evidence is such Pennsylvania. Court of Commonwealth person might evidence as a reasonable accept support finding as sufficient to of fact. July Briefs 1998. Submitted on In O’Connor. the Court’s view the record Aug. Decided ample support contains evidence to the find here, bridges that the older involved all shortly of which were constructed after the century, reasonably turn of the last nearing viewed as the end of their useful Accordingly, lives. the order of the Commis sion is affirmed.