188 Pa. Super. 174 | Pa. Super. Ct. | 1958
Opinion by
This is an appeal by the Township of Scott, Allegheny County, from an order of the Pennsylvania Public Utility Commission allocating to the township a portion of the cost of maintenance of a bridge at a highway-railroad crossing. The appeal questions the jurisdiction of the commission; in the alternative the sufficiency of the evidence to support the order is challenged. The commission is also charged with an abuse of discretion in refusing a petition of the township for rehearing.
On October 28, 1957, the Pittsburgh & West "Virginia Railway Company applied to the commission for the allocation of the costs of maintaining a bridge over which the Old Bower Hill Road in Scott Township crosses the grade of its track. The Pennsylvania Department of Highways and the Township of Scott filed answers protesting the application. A hearing was held on January 13, 1958. Prom the record it appears that a bridge existed at this crossing prior to 1918, and that in 1918 the present bridge was constructed by virtue of an order of the commission. The order for construction in 1918 directed the railroad to maintain the guard rails on the approaches, but with respect to all other maintenance it was silent. Since 1918, however, the railroad has voluntarily borne all costs of maintenance. Over the past several years the annual cost of maintenance has averaged $320. In 1957, the railroad replaced the plank deck of the bridge with metal grating at a cost of $17,952. A witness testified that at the time of the hearing the bridge was “shipshape and now up to date.” It was shown that the nature and extent of the traffic over the bridge had changed since 1918; and that traffic was likely to be increased because of the construction of the John Kane Memorial County Hospital in the vicinity, and
The railroad indicated that it would be willing to continue to maintain the substructure and superstructure of the bridge, but it would have some other agency maintain the roadway, including the bridge floor members.
The commission, by its order of June 2, 1958, approved the application, and ordered that the Township of Scott thereafter maintain, in a safe and proper condition, the steel grating floor, the steel curbs and guard railing on the bridge, as well as the highway approaches to the bridge, including the guard fence. The railroad was ordered to maintain, at its sole cost and expense, the substructure and the remainder of the superstructure of the bridge.
The jurisdiction of the commission to entertain and act upon the present application is clear. The extent of the commission’s authority and jurisdiction is found in sections 409 and 411 of the Public Utility Law. Delaware River Port Authority v. Pennsylvania Public Utility Commission, 393 Pa. 639, 643, 145 A. 2d 172. Section 409 (b) of the Law, 66 PS §1179 (b), specifically provides: “The commission is hereby vested with exclusive power to appropriate property for any such crossing, and to determine and prescribe, by regulation or order, the points at which, and the manner in which, such crossing may be constructed, altered, relocated or abolished, and the manner and conditions in or under which such crossings shall be maintained, operated, and protected to effectuate the prevention of accidents and the promotion of the safety of the public.” See, also, section 411 (a) of the Law, 66 PS §1181 (a); De
In Conshohocken Borough v. Pennsylvania Public Utility Commission, 135 Pa. Superior Ct. 295, 5 A. 2d 590, this Court affirmed an order of the commission of 1937 allocating the costs of maintenance of a bridge which had been built pursuant to an order of the commission in 1919. The original order for construction in 1919 had made no provision for maintenance. We there stated (page 303 of 135 Pa. Superior Ct., page 593 of 5 A. 2d) : “We deem it to be clear that the commission had jurisdiction to provide for the maintenance and repair of the structure and to allocate the costs.” The public is entitled to have crossing facilities continuously maintained in a safe condition. The responsibility for that maintenance should be definitely determined by the commission under the provisions of the
A pertinent statement of the power of the commission appears in Pittsburgh & Lake Erie R. R. v. McKees Rocks Borough, 287 Pa. 311, 319, 135 A. 227, 230: “. . . the commission has power to require those immediately concerned to maintain an existing elevated crossing, or bridge, and to contribute toward the cost of such maintenance in the manner and proportions ordered by that body; . . .”
The fact that the prior bridge was constructed about 1904 by the railroad does not affect the commission’s jurisdiction. The Act of February 19, 1849, P. L. 79, §12, 67 PS §381, which places the obligation for repair of certain crossings upon railroads, does not limit or restrict the exclusive jurisdiction of the commission over public crossings under the Public Utility Law. See Delaware, Lackawanna & Western Railroad Company v. Shuman, 382 Pa. 452, 457, 115 A. 2d 161. See, also, Wilkes-Barre v. Pennsylvania Public Utility Commission, 164 Pa. Superior Ct. 210, 63 A. 2d 452.
Finally appellant claims that the evidence to sustain the order of the commission is insufficient. In reviewing the evidence to determine its sufficiency, it
A brief summation of the evidence establishes its sufficiency. The railroad introduced evidence of the location, design, and physical structure of the bridge which carries the Old Bower Ilill Boad over its track in Scott Township. Old Bower Hill Boad is a public road maintained by appellant. There was evidence of the nature and cost of yearly maintenance required to keep the bridge in repair. In 1957 the railroad expended $17,952 to replace the timber deck with metal grating. The bridge was originally designed to carry primarily horse-drawn vehicles and the type of rural traffic present in 1918. Since 1918 the type and the character of the traffic have changed and the volume has increased. Naturally the result has been greater wear and tear on the bridge. The traffic survey from December 27, 1957, to December 29, 1957, indicated that an average of approximately 550 automobiles and approximately 100 trucks use the bridge every day. In the winter season the use of chains on vehicles and the salting and cindering of highways have tended to increase maintenance costs. Such conditions, of course, did not exist at the time the present bridge was constructed. A witness for the railroad testified that he was familiar with the area; that the traffic over the
Appellant presented no witnesses before the commission. The sufficiency of the evidence is free from doubt; it affords a basis for the administrative determination and the allocation of maintenance costs by the commission in pursuance of the legislative mandate to promote the safety of the public. Although it Avas not essential to this application, the evidence established a change in the nature of the traffic presently using the bridge compared Avith the nature of the traffic using it when it Avas constructed and for which it was designed. As stated there is a relatively substantial number of vehicles using this route daily, it is also reasonably certain that traffic would increase due to the construction of the hospital and the improvement of tAvo state higlrways in the vicinity. Giving consideration to these circumstances and other enumerated factors, including the annual cost of maintenance, it Avas permissible for the commission to conclude that it Avould be fair and reasonable to require the municipality to bear the cost of maintenance of that portion of the bridge most affected by traffic conditions.
There is precedent for this action of the commission. In Pennsylvania Railroad Company v. Pennsylvania Public Utility Commission, supra, 136 Pa. Superior Ct. 1, 3, 7 A. 2d 86, this Court affirmed an order of the commission allocating the responsibility of maintaining the substructure and superstructure of a bridge to the railroad and the responsibility of maintaining the roadAvay planking on the bridge to the Department of Highways.
Appellant filed a petition with the commission requesting a rehearing. The petition was denied. On appeal it is argued that the refusal to grant the rehearing constituted a clear abuse of discretion in view of the purported lack of jurisdiction of the commission over the application of the railroad, and in view of the asserted absence of evidence to support the allocation to appellant of a portion of the maintenance costs. Under the circumstances we find no abuse of discretion on the part of the commission in refusing the petition. See Pittsburgh Railways Company v. Pennsylvania Public Utility Commission, 180 Pa. Superior Ct. 201, 215, 216, 119 A. 2d 804. The petition does not set forth any new or substantial evidence which had not been, or which could not have been, fully presented to and considered by the commission. See Byers v. Pennsylvania Public Utility Commission, 176 Pa. Superior Ct. 620, 625, 109 A. 2d 232.
The order of the commission is affirmed.
This case involved a bridge over the grade of the tracks of the railroad company.