United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 1999 Decided July 7, 2000
No. 97-7221
City of Philadelphia,
Appellee
v.
Consolidated Rail Corporation,
Appellee
National Railroad Passenger Corporation,
Appellant
Consolidated with
97-7222, 97-7223
Appeals from the United States District Court
for the District of Columbia
(No. 96rr00001)
(No. 96rr00003)
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Dennis M. Moore argued the cause for appellant National
Railroad Passenger Corporation. With him on the briefs
were J. Brian Molloy and John L. Moore, Jr.
Joann Hyle argued the cause for appellant Consolidated
Rail Corporation. With her on the briefs were Laurence Z.
Shiekman and Stacey A. Mufson. Stephanie L. Kralik en-
tered an appearance.
Kenneth A. Murphy argued the cause for appellee City of
Philadelphia. With him on the brief was Gaetan J. Alfano.
Susan D. Colwell argued the cause and filed the brief for
appellee Pennsylvania Public Utility Commission. John F.
Povilaitis entered an appearance.
Before: Silberman, Sentelle and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Consolidated Rail Corporation
and National Railroad Passenger Corporation appeal from a
summary judgment entered against them in favor of the City
of Philadelphia and the Pennsylvania Public Utility Commis-
sion requiring the railroads to pay for the refurbishment of a
highway bridge. Because the question of ownership of the
bridge was a matter governed by the state law of Pennsylva-
nia, we certified that question to the Supreme Court of
Pennsylvania. That court having now ruled that the City of
Philadelphia owns the bridge, we reverse the judgment of the
District Court and remand the case for the entry of summary
judgment in favor of the railroads.
Analysis
This case originated in the District Court for the District of
Columbia sitting as a Special Court under the Regional Rail
Reorganization Act of 1973, 45 U.S.C. s 719 (1994). The case
is a contest between the City of Philadelphia ("the City") and
the Pennsylvania Public Utility Commission ("PUC") on one
side, and Consolidated Rail Corporation ("Conrail") and Na-
tional Railroad Passenger Corporation ("Amtrak") on the
other, over who owns a highway bridge over a below-grade
railroad right-of-way, who has to pay for its repair and
upkeep, and in what amount. The railroads appeal the
District Court's grant of summary judgment against Conrail
and Amtrak and in favor of the City and the PUC, in which
the railroads were required to pay for the refurbishment of a
highway bridge as its owners and as successors to the now-
defunct Pennsylvania Railroad and its successor, the also
defunct Penn Central Transportation Company ("Penn Cen-
tral") under a contract with the City in which the railroad
promised to maintain the bridge at no cost to the City. The
dispositive issue in the case is the ownership of the bridge
under Pennsylvania law. If the Pennsylvania Railroad, the
original builder, never owned the bridge, but merely was a
party with a contractual maintenance obligation, then the
bridge did not pass to the railroads when the properties of
Pennsylvania Railroad's successor Penn Central passed to
Conrail and Amtrak under the provisions of the Regional Rail
Reorganization Act of 1973. The parties offer Pennsylvania
authority both for the proposition that highway bridges are
parts of the highway they carry, and that they are appurte-
nances to the property they cross. No one provides, nor have
we located, any case from Pennsylvania directly considering
what effect the ordinance between the City and the railroad
and the allocation of maintenance obligations in perpetuity
may have on the question of ownership in the first instance.
A. Jurisdiction
This action was originally filed in the Special Court under
45 U.S.C. s 719(e) (1994). The Special Court was abolished
by Congress effective January 17, 1997, and its original
jurisdiction was transferred to the United States District
Court for the District of Columbia. See 45 U.S.C. s 719(b)(2)
(Supp. III 1997). We have jurisdiction of this appeal under
45 U.S.C. s 719(e) (Supp. III 1997) and 28 U.S.C. ss 1291
and 1294 (1994).
B. Material Facts of the Case
The basic facts material to this issue are not disputed. The
bridge in question crosses six railway tracks in the railroad
right of way at 41st Street in Philadelphia. The City owns the
bridges over 40th Street and 42nd Street, but maintains that
the railroads own the 41st Street bridge. The 41st Street
bridge crosses six railway tracks, four owned by Amtrak and
two owned by Conrail. The original steel and timber bridge
elevating 41st Street where it intersects with the railroad
right of way was built at the site in 1875. That bridge was
replaced by the now-deteriorating steel and concrete struc-
ture which was built in 1929, pursuant to a Philadelphia city
ordinance that required the Pennsylvania Railroad to build
and maintain the bridge at its own cost under the supervision
of the Philadelphia Department of Public Works. The Penn-
sylvania Railroad1 signed a document accepting these require-
ments on May 11, 1927. The Pennsylvania Public Service
Commission (which became the PUC) issued a Certificate of
Public Convenience for construction of the highway bridge on
February 21, 1928, and Penn Central completed construction
in August of 1929. None of these documents mentions own-
ership of the bridge.
It appears that the Pennsylvania Railroad and its successor
Penn Central lived up to this contractual obligation until
financial crisis struck the rail industry in the northeast,
threatening its extinction. By 1971, Penn Central had filed
for bankruptcy. It was not alone. By the early 1970s, the
railroads in the northeast were failing at such a rapid rate
that Congress stepped in to resolve the regional rail crisis.
Congress passed the Regional Rail Reorganization Act of
1973, Pub. L. No. 93-236, 87 Stat. 985 (1974) (codified as
amended at 45 U.S.C. s 701 et seq. (1994)) (the "Rail Act"),
which allowed the railroads to reorganize into a single entity,
and Conrail was designed to salvage the viable rail properties,
leaving much of the debt behind in bankruptcy and beginning
with a "clean slate." The process by which new, financially-
viable railroads were built from the wreckage that was the
northeastern rail system forms the essential legal background
to this case. See generally Regional Rail Reorganization
Act Cases, 419 U.S. 102, 108-17 (1974).
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1 The Pennsylvania Railroad, through merger, became the Penn
Central Transportation Company.
The Rail Act created the United States Railway Associa-
tion, see 45 U.S.C. s 711(a), a non-profit corporation, which in
turn prepared a Final System Plan ("FSP") which designated
how rail properties held by the bankrupt railroads would be
distributed, see 45 U.S.C. s 716. The Rail Act also created
Conrail, see 45 U.S.C. s 741(a), and mandated that rail prop-
erties designated in the FSP be conveyed to Conrail, see 45
U.S.C. s 743(b). The conveyance process was supervised by
the Special Court and implemented through a Conveyance
Order of the Special Court. See 45 U.S.C. s 719(b). Proper-
ties related to passenger rail service were then reconveyed to
Amtrak. The transfer that matters in this case occurred
when, pursuant to the Rail Act, all of Penn Central's "rail
properties," i.e. properties "used or useful in rail transporta-
tion service," 45 U.S.C. s 702(14), were conveyed to Conrail,
and the property related to passenger rail service was recon-
veyed to Amtrak. The City and the PUC claim that Penn
Central's trustees in bankruptcy conveyed all of the real
property in Philadelphia County to Conrail, "including the
railroad right of way, rails, and the 41st Street Bridge former-
ly owned by [the Pennsylvania Railroad]."
The railroads dispute that the bridge was ever owned by
Penn Central, and thus dispute that it could ever have been
properly conveyed to them. They characterize the Rail Act
conveyances differently. According to the railroads, the
deeds between the trustees of the Penn Central bankruptcy
estate and Conrail, and between Conrail and Amtrak, con-
veyed the real property free and clear of liens and encum-
brances. The six railroad tracks under the 41st Street bridge
were conveyed to Conrail, and four of them were reconveyed
to Amtrak. Real property was conveyed by deed, and other
property was conveyed by Bills of Sale and Assignment,
which specifically excluded contracts for the "rehabilitation
and modernization" of property without complete financial
remuneration of the new railroads. Contracts for the "main-
tenance and security" of property not passed to Conrail also
were expressly not conveyed.
The railroads denied any ownership interest in the bridge,
and opposed attempts by the City to have them maintain the
bridge. The bridge continued to deteriorate to the point that
it was closed to vehicular traffic in 1993, and only pedestrians
were allowed across. The City notified the PUC of the
deteriorated condition of the bridge, and the PUC approved
the closure. (To the extent not preempted by federal law, the
PUC has regulatory authority over bridges crossing railroad
rights of way under Pennsylvania law, and may permit
changes or construction, and determine who must pay for
maintenance.) The PUC began an investigation to determine
who was responsible for the repair and future maintenance of
the bridge. The PUC directed Amtrak to create a plan for
repairing the bridge, and ordered the City to pay the initial
costs of repair.
The current case was initiated by the City in the Special
Court asking for a declaration that the responsibility to
maintain the 41st Street bridge had been conveyed to Amtrak
and Conrail by the Special Court's order transferring Penn
Central's property. Conrail then brought a related action
against the PUC, seeking to bind it to any order issued by the
Special Court. The two cases were consolidated. On simul-
taneous motions for summary judgment, the Special Court
held that the real property under the 41st Street bridge and
the bridge itself had been owned by Penn Central and had
been conveyed to Conrail and Amtrak, and that the contractu-
al obligation to maintain the bridge under the 1927 agreement
had also been conveyed. The Special Court further held that
while Conrail and Amtrak were not responsible for any
deterioration that took place prior to April 1, 1976 under the
Rail Act's "fresh start policy," the deterioration had substan-
tially occurred after that date. It held Conrail and Amtrak
responsible for all of the costs associated with repair and
maintenance of the bridge, and apportioned two-thirds to
Amtrak and one-third to Conrail, according to the number of
rail lines each owned. The Court also stated that Amtrak's
obligation was not a tax or fee, but a contractual obligation.
It did not address Amtrak's defenses that the action under
the contract was barred by the statute of limitations or
discharged in the Penn Central bankruptcy proceeding.
C. The Certification
Because this case presented a question that will likely rise
again in the context of litigation over the so-called "orphan
bridges" to which neither the railroads nor the municipalities
claim title, and because state law governing ownership of the
bridge is dispositive of the question of contractual allocation
of maintenance agreements, we concluded that an authorita-
tive response to the question would assist in establishing
uniformity in future proceedings. We further concluded that
the precise effect of the ordinance contracts on questions of
bridge ownership is purely a question of state law. We
therefore petitioned the Supreme Court of Pennsylvania for
certification of the question of state law under 204 Pa. Code
s 29.451 (1999). The Pennsylvania Supreme Court helpfully
granted our petition, and has now decided the certified ques-
tion.
Based on the undisputed facts, that court held that it "has
long been recognized as the law in Pennsylvania" that "where
a railroad company has constructed at its own expense a
bridge over its tracks at a street crossing, and the bridge is to
constitute part of a public highway and be maintained by the
municipality, title to the bridge rests in the municipality."
City of Philadelphia v. Consolidated Rail Corp., No. 29 M.D.
Miscellaneous Docket 1999, slip op. at 4 (Pa. Feb. 24, 2000)
(citing Pennsylvania R.R. v. Greensburg, J. & P. Street Ry.,
176 Pa. 559, 575, 35 A. 122, 129 (1896)). As further authority,
the Supreme Court cited North Pennsylvania Railroad Co. v.
Inland Traction Co., 205 Pa. 579, 587-89, 55 A. 774, 775-76
(1903), which held that a "railroad lacked standing to object to
proposed use by streetcars of a highway bridge that it
constructed over its right-of-way, inasmuch as the bridge
became part of the public highway, and the railroad thus had
no property interest that would be affected." Consolidated
Rail, slip op. at 4. The court further recognized as a long-
established principle "that a bridge carrying a public street is
deemed to be a part of the street, and, as such, it is owned by
the entity that owns the street." Id. (citing Heinlein v.
Allegheny County, 374 Pa. 496, 499, 98 A.2d 36, 38 (1953)).
As it is "undisputed that the City owns the public street that
is supported by the 41st Street bridge," it has owned the
bridge since the completion of its reconstruction in 1929.2
Conclusion
The Pennsylvania Supreme Court having decided the gov-
erning question of state law that the City and not the
railroads owns the bridge, and the railroads having been
absolved of contractual liability by the bankruptcies and the
Reorganization Act, we reverse the decision of the District
Court granting summary judgment in favor of the City and
the PUC and remand the case for the entry of summary
judgment in favor of the railroads.
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2 On June 19, 2000, the Supreme Court of Pennsylvania issued an
order denying the City's application for reconsideration.