Salem Township v. Public Service Commission , 1921 Pa. Super. LEXIS 156 ( 1921 )

Opinion by

Linn, J.,

Salem Township complains of an order of the commission abolishing two grade crossings, one near each end of the village of Beech Haven in that township. The main street of the village is part of state highway route No. 4, and extends on a bow-shaped line, at each end of which the tracks of the Delaware, Lackawanna and Western Railroad cross at grade. The state highway department filed a complaint with the Public Service Commission naming the Delaware, Lackawanna and Western Railroad Company as respondent and alleging that these two grade crossings were dangerous and should be abolished. The respondent filed an answer admitting those averments and setting up that the local municipalities should be made parties and that the expense should be apportioned. Apparently upon that petition and answer the commission made an order abolishing the grade crossings and directing that Salem Township and Luzerne County be made parties, and that copies of the complaint be served upon them, with notice that a hearing would be held to consider plans prepared by the state highway department providing for abolishing the grade crossings and for the apportionment of the expense incident thereto. No notice of the proposed abolition was first given to the local municipalities as required by section 12, article V of the Public Service Company Law (Laws of 1913, P. L. 1408; Laws of 1917, P. L. 1030), so that tbe proceeding would be fatally defective, as suggested by appellant, bad tbe oversight not been cured.. Tbe record shows that a petition signed by residents of tbe township was filed, asking for tbe rescission of tbe order. Tbe township also appeared and filed an answer to tbe complaint. Afterward, at tbe bearing, of which notice bad been given and at which all parties appeared and participated, tbe matter of tbe abolition of tbe crossings was taken up de novo and tbe contentions of tbe township were duly presented and considered. We must therefore dismiss tbe objection that notice of tbe proceeding was inadequate.

Tbe plan adopted by tbe commission provides for tbe relocation of tbe state highway on a line just beyond tbe railroad tracks and substantially parallel with them, where no crossings will be required. Tbe order of tbe commission vacates so much of tbe highway as theretofore existed within tbe lines of tbe right-of-way of tbe railroad company at grade at each end of tbe village, Direct authority for this is conferred by tbe Act of July 17, 1917, P. L. 1025: “In determining tbe plans and specifications for any crossing herein mentioned, tbe commission may.abandon or vacate such highways or portions of highways as, in tbe opinion of tbe commission, may be rendered unnecessary for public use by tbe construction, relocation, or abandonment of-any of said crossings.”

Tbe railroad company maintains a station in tbe village nearly half way between tbe grade crossings and access from part of tbe village to that station is afforded by a street extending from tbe main street to tbe station, crossing tbe tracks at grade in front of it. Tbe commission requires that additional safeguards be established by tbe railroad company at this grade crossing, and also that it construct and pay for a subway under its tracks at a point between tbe church and tbe school bouse to afford more direct access from tbe relocated highway at that end of the village. The state highway department, the County of Luzerne and the respondent railroad company have approved the plans and the conclusion of the commission. Salem Township approves of the relocation of the state highway on the line proposed but urges that since through travel on the relocated highway from Scranton and Wilkes-Barre westward may pass without crossing the railroad tracks, the grade crossings at each end of the village should remain for the accommodation of such persons as chose to enter or leave the village over those crossings. We can find nothing in the evidence and nothing was suggested in the argument that would warrant our differing from the conclusion of the commission that those crossings should be abolished. The township is concerned with the improvement within the meaning of the statute: Appeal of Paradise Township, 75 Pa. Superior Ct. 208, and the cost assessed against the township has not been shown to be unreasonable.

The order of the commission has not been assigned for error though it should have been: Jenkins Twp. v. P. S. C., 65 Pa. Superior Ct. 122. We have, however, considered the appeal on the merits.

The appeal is dismissed at the cost of the appellant.