Pennsylvania Public Utility Commission v. Department of Transportation

Dissenting Opinion by

Judge Manderino :

We are concerned here with the question of who should pay the expenses of rebuilding an overhead bridge on a township road. The bridge in question carries Church Eoad in Upper Merion Township, Montgomery County, across the tracks of the Philadelphia Suburban Transportation Company (PSTC). The Pennsylvania Public Utility Commission has imposed *150sixty-five percent of the cost of rebuilding the bridge on the Township, twenty-five percent on the PSTC and ten percent on Montgomery County.

The majority has affirmed the Commission’s allocation on the basis that there was substantial evidence to support the allocation. The evidence essentially shows the heavy use of the bridge by Township residents. However, constant and heavy use of the bridge by Township residents does not justify the imposition on the Township of an obligation to bear sixty-five percent of the cost of rebuilding the bridge. A historical survey of the events leading up to this case will confirm the unfairness of the Commission’s allocation.

It is undisputed that the Township road pre-existed the construction of the railroad tracks. The predecessor company of the PSTC constructed the original bridge at the time that company was putting in a high speed line from Philadelphia to Norristown. The bridge was built for the convenience of the railroad company so there would be no grade crossings on the high speed line. The Township never requested that the bridge be built and, in fact, had no need for such a bridge. Now the bridge must be rebuilt and Upper Merion Township finds itself in the position of being required to pay sixty-five percent of the costs of rebuilding a bridge built by a railroad company for its own benefit. This result is unconscionable.

In apportioning costs, the Public Utility Commission must take all factors into consideration. However, its order must be just and reasonable. Pittsburgh Railways Company v. Pennsylvania Public Utility Commission, 198 Pa. Super. 415, 182 A. 2d 80 (1962). The order in this case was neither just nor reasonable. The allocation of sixty-five percent of the expenses to the Township ignores the fact that the bridge was neither built at the request of the Township nor made necessary by any act of the Township. To say that any private com*151pany can come into a municipality, replace a municipal road with a bridge for the convenience of the company, and then place the burden of maintaining the bridge on the municipality is grossly unfair. Upper Merion Township would never have been faced with the problem it now has if the railroad company had not put in its high speed line.

The Commission’s order in this case is not substantiated by the evidence. The fact that the bridge is substantially used by the Township does not warrant the present allocation. It is only natural that the bridge is heavily used by the Township. It carries a Township road across the railroad tracks. But the fact remains that the Township would have had no need for this bridge had the railroad company not constructed a high speed line across the Township road. This fact should have been given heavy consideration by the Commission. Without such consideration, the Commission’s order is arbitrary, unjust and unreasonable.

Allocations (as legislatively mandated) in cases such as the present one, have frequently been determined on an ad hoc basis. The Public Utility Commission must be guided by rational standards consistently applied when determining how expenses are to be shared. Without such guidelines, the Commission’s orders can only be arbitrary and questions such as the one before us now will continue to plague the courts. Meaningful judicial review is not possible without measuring expense allocations against standards applied consistently from case to case. Otherwise, we would be confronted with an unconstitutional exercise of authority delegated by the legislature. Common carriers, as well as municipalities, are entitled to know why their share of expenses in a particular case differs from the expense burden imposed upon other municipalities and other common carriers in other cases. The Commission, rather than this court, is entitled to es*152tablish proper allocation standards which must then be applied with a degree of reasonable consistency from case to case. Otherwise, discrimination may result and proper judicial review becomes impossible.

I would reverse the order of the Public Utility Commission and remand this case to the Commission directing new expense allocations, backed up by reasonable standards which remain consistent from one case to another.