Pittsburgh Railways Co. v. Pennsylvania Public Utility Commission

182 A.2d 80, 198 Pa. Super. 415
CourtSuperior Court of Pennsylvania
DecidedJune 13, 1962
DocketAppeals, Nos. 57 and 63
StatusPublished
Cited by30 cases

This text of 182 A.2d 80 (Pittsburgh Railways Co. v. Pennsylvania Public Utility Commission) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pittsburgh Railways Co. v. Pennsylvania Public Utility Commission, 182 A.2d 80, 198 Pa. Super. 415 (Pa. Ct. App. 1962).

Opinion

Opinion by

Wright, J.,

We are here concerned with appeals by the Pittsburgh Railways Company (hereinafter referred to as Pittsburgh) and the County of Allegheny from an order of the Pennsylvania Public Utility Commission, dated October 9, 1961, as the result of an application [420]*420by Pittsburgh for approval of the alteration of the grossing where Center Street and two of Pittsburgh’s tracks, located in the bed of the street, cross above the grade of two tracks of the Pennsylvania Railroad, all in the Borough of Ingram, Allegheny County. This application, docketed at A.86353, is one of sixteen similar applications for the approval of the abolition or alterations of steam railroad crossings, and of highway crossings above or below grade. These applications were filed concurrently with the application of Pittsburgh, docketed at A.86339, seeking approval of the abandonment of street railway services and facilities in that portion of its system operated between the downtown area and suburban municipalities to the west; and also concurrently with Pittsburgh’s applications, docketed at A.76720, Folders 73 to 78, to substitute bus service. As a matter of procedure, these applications were consolidated for hearing, and the record is quite extensive. So far as the application at Docket A.86353 is concerned, the order of the Commission directs that the crossing be altered generally in accordance with a bridge plan prepared by the Borough of Ingram. The costs were allocated as follows: ten percent each to be paid by the Pennsylvania Railroad and the Borough of Ingram; twenty-five percent to be paid by the County of Allegheny; and fifty-five percent to be paid by Pittsburgh.

The bridge in question was erected in 1905 by Pittsburgh’s predecessor, the Pittsburgh, Crafton & Mansfield Street Railway Company. At that time Center Street was known as Catherine Street. Prior to the construction of the bridge, the Borough of Ingram enacted an authorization ordinance, dated January 26, 1903, which provided that Pittsburgh’s predecessor “shall erect and maintain a bridge which can be used for vehicle travel . . . and shall provide a walk, not less than four feet on each side of said bridge for foot pas[421]*421sengers . . . and shall grade so much of said Catherine Street as shall be extended to the full width thereof when open”. By an agreement, dated May 29, 1903, between Pittsburgh’s predecessor and the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, predecessor of the Pennsylvania Railroad, it was stipulated that the bridge should be constructed and maintained solely at the expense of Pittsburgh’s predecessor. We are therefore concerned in this case with a bridge which was built at the initiative of Pittsburgh’s predecessor to accommodate its facilities, presently owned and maintained by Pittsburgh, and which Pittsburgh is obligated to maintain. It should be noted that the bridge will continue to be used by Pittsburgh’s buses, and that the order complained of entirely relieves Pittsburgh from future maintenance.

During the course of the proceedings it became apparent that there was a substantial question as to the adequacy of the bridge structure, and its actual physical condition. The Commission became concerned about the possible existence of “a serious and hazardous condition for the traveling public”. Consequently, under date of March 20, 1961, the record was opened, and further hearings scheduled, upon due notice to all parties, “for the purpose of determining whether the aforesaid Catherine Street Bridge (Center Street) crossing, located in the Borough of Ingram, Allegheny County, should be altered, repaired, or reconstructed to effectuate the prevention of accidents and to promote the safety of the public and if so, what corrective measures and facilities are necessary at said crossing and what, if any, changes should be effectuated and for the purpose of determining the cost of providing and maintaining any or all of the corrective measures and facilities which may be found necessary at said crossing, and the portion of said costs which each of the parties named above should bear”. Following the tak[422]*422ing of testimony at two hearings, the Commission entered its order of October 9, 1961, from which the instant appeals have been taken.

On this appeal Pittsburgh advances four contentions, and the County of Allegheny advances two contentions. These six questions will be treated in chronological order. It is important to note at the outset that Pittsburgh’s application was filed under Section 409 of the Public Utility Law. Act of May 28, 1937, P. L. 1053, 66 P.S. 1101 et seq. The pertinent portions of this section (66 P.S. 1179) are set forth in the footnote.1 Both Pittsburgh and the County have argued these appeals primarily as though we were dealing with a simple abandonment case under Section 202 of the statute (66 P.S. 1122). The power of the Commission under the two sections is not the same. In either event, [423]*423the scope of our review is within restricted limits. As set forth in Section 1107 of the statute (66 P.S. 1437) : “The order of the commission shall not be vacated or set aside, either in whole or in part, except for error of law or lack of evidence to support the finding, determination, or order of the commission, or violation, of constitutional rights”. It is further provided in Section 1112 of the statute (66 P.S. 1442) : “Whenever the commission shall make any rule, regulation, finding, determination, or order under the provisions of this act, the same shall be prima facie evidence of the facts found”. See Duquesne Light Co. v. Pa. P. U. C., 176 Pa. Superior Ct. 568, 107 A. 2d 745.

Pittsburgh’s first contention is that its application was limited in scope to alteration of the crossing by reason of the abandonment of its street railway tracks, and that the Commission “exceeded its legal jurisdiction and authority in ordering replacement of the decking and sidewalks and other improvements and repairs”. It is Pittsburgh’s position that the Commission can deal in the instant case only with abandonment of the street railway facilities, and that alteration of the crossing generally, apart from that portion involved in the removal of street railway facilities, is not properly before it. The very language of Section 409 refutes this argument. Nowhere in the section can there be found any support for Pittsburgh’s contention. Although the jurisdiction of the Commission in crossing cases is not completely unlimited, when it attaches it is exclusive: Borough of Bridgewater v. Pa. P. U. C., 181 Pa. Superior Ct. 84, 124 A. 2d 165. Each of the three cases relied upon by Pittsburgh involves an abandonment proceeding. See West Penn Railways Co. v. Pa. P. U. C., 135 Pa. Superior Ct. 89, 4 A. 2d 545; West Penn Railways Co. v. Pa. P. U. C., 142 Pa. Superior Ct. 140, 15 A. 2d 539; Department of Highways v. Pa. P. U. C., 173 Pa. Superior Ct. 581, 98 A. 2d 199. These [424]*424cases hold that the duty of a street railway company on abandonment is confined to the removal of the rail facilities and the restoration of the area immediately disturbed. However, cases arising under abandonment proceedings do not control the present appeals. In Philadelphia Suburban Water Co. v. Pa. P. U. C., 168 Pa. Superior Ct. 360, 78 A. 2d 46, we stated that such cases “do not apply to or in any wise delimit the broad powers conferred upon the Commission in railroad crossing proceedings”.

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182 A.2d 80, 198 Pa. Super. 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pittsburgh-railways-co-v-pennsylvania-public-utility-commission-pasuperct-1962.