DocketNumber: Appeal, Nos. 220 and 221
Citation Numbers: 118 Pa. Super. 380
Judges: Baldrige, Cunningham, James, Keller, Parker, Rhodes, Stadtfeld
Filed Date: 7/18/1935
Status: Precedential
Modified Date: 2/18/2022
Opinion by
The main line of the Pennsylvania Railroad bisects the Borough of Penn in Westmoreland County, from east to west, causing a dangerous grade crossing over four railroad tracks at Harrison Street, a principal street of the borough running north and south. The borough has between 1,000 and 1,500 inhabitants, many of whom work in Jeannette, a much larger industrial borough located south of the Pennsylvania Railroad and adjoining the eastern boundary of that part of Penn Borough which lies south of the railroad. The eastern boundary of Penn Borough north of the rail
In 1889, pursuant to an order of the Court of Quarter Sessions of Westmoreland County the Pennsylvania Railroad built a bridge across its tracks at Eleventh Street (Penn Township), known as the Burrell bridge, at a point about 1,800 feet east of the Harrison Street crossing aforesaid, in elimination of another grade crossing then existing, approximately 100 feet west of the bridge site. The court order made no provision for the maintenance of the bridge. It was maintained by the railroad company until 1918, when a controversy arose with Penn Township regarding its future maintenance, resulting in an agreement on September 9, 1922, which provided for its maintenance by the railroad company until December 13, 1930, but made no provision thereafter. On October 1, 1931 the bridge, being in bad physical condition, was closed to traffic by the railroad company and on February 28, 1932, without making any application to, or securing the necessary approval of, the Public Service Commission for such action, the railroad company removed the superstructure of the bridge.
On May 28, 1932 Thomas R. Battle filed his petition with the Public Service Commission, setting forth that he and his family and many other families on the north side of the railroad in the vicinity of Burrell bridge had no means of crossing the railroad tracks unless they traveled about one-half mile westward and used the grade crossing at Harrison Street, returning the same way; that many children from the neighborhood who attended school in the south side of Penn Borough, were compelled to make this long trip twice a day, since the Burrell bridge was' removed; and praying that the Commission order the construction of a new bridge at or near the former site of the Burrell bridge. The Pennsylvania Railroad Company, the Borough of
On January 7, 1933, before any testimony had been taken on the Burrell bridge petition, the County of Westmoreland filed its complaint before the Public Service Commission praying for the abolition of. the Harrison Street grade crossing, as a dangerous crossing, and the substitution of a subway, or of a convenient crossing over [above] the tracks of the railroad in the Borough of Penn, or east of it in Penn Township at some convenient point which would serve the residents both of the borough and township aforesaid. Answers to this complaint were severally filed by the Pennsylvania Railroad Company, the Borough of Penn, the Township of Penn and the Borough of Jeannette.
These two complaints were consolidated by the Commission for hearing and determination. At the hearings, W. D. Wiggin, chief engineer for the Pennsylvania Railroad Company, Central Region, and L. J. Riegler, engineer of the Pennsylvania Railroad Company, whose work for ten years had been largely in connection with grade crossing elimination, both testified that the only feasible and practicable plan of dealing with the problem and providing a substitute for the grade crossing at Harrison Street—that is, within reasonable cost or expense limits—was the same in essential details as a plan which had been prepared by the railroad company’s engineers in the spring of 1931, in connection with a proposed agreement (subject to the approval of the Public Service Commission) between the railroad company, the County of Westmoreland, the supervisors of Penn Township, the burgess and council of Penn Borough and the burgess and council of Jeannette Borough. This agreement called for the abolition of the grade crossing at Harrison Street; the
The railroad company’s engineers, as aforesaid, testified that they had given ten years thought and planning to the question; that an overhead bridge at Harrison Street would cost about $175,000; the cost of an overhead crossing at Toughiogheny Street, which is midway between Harrison Street and Burrell bridge, was about $280,000; that a pedestrian subway or overhead foot bridge could take care of the pedestrian traffic at Harrison Street; and that, on account of the grade, it was not practicable to build a vehicular subway at Harrison Street, nor was it feasible and practicable to construct a bridge or overhead vehicular crossing, within reasonable cost limits, at any point except at the Burrell bridge site. The cost of the pedestrian subway, according to this plan, was $25,000; a foot bridge, it was said, would cost $16,000 less. The cost of the new Burrell bridge, exclusive of approaches, was $33,000. They therefore recommended the adoption of the plan, substituting, however, a foot bridge instead of the pedestrian subway, solely because of its lower cost, and
The Commission, after full hearing and mature consideration, on April 2, 1934, filed its report holding that the Harrison Street grade crossing, although protected by railroad watchmen and gates for twenty-four hours daily, was dangerous, owing to the large number and high speed of trains operated over the tracks at that location and the curve and elevation of the tracks, and should be abolished; and adopted a plan eliminating the same, which in essential engineering details was the original plan or project prepared by the railroad company’s engineers and presented to the municipalities. It provides for the abolition of the grade crossing at Harrison Street and, in lieu thereof, the construction by the railroad company, at its expense, of a pedestrian subway—which it found much preferable to a foot bridge—at an estimated cost of $25,000; the reconstruction by the railroad company, at its expense, of the Burrell bridge, at an estimated cost, for the substructure and superstructure, including the roadway paving thereon, but not including approaches, of $33,000; that the County of Westmoreland construct the approaches to the new bridge and extend Locust Street from the borough limits to Eleventh Street, and improve the same with a concrete roadway from Harrison Street to Eleventh Street, at an estimated cost of $40,672.94, of which the railroad company was ordered to pay to the county the sum of $25,000; the railroad company was also ordered to pay any money to which it might be entitled as compensation for damages for its property taken, etc., by the improvement, and the Borough of Jeannette, the Borough of Penn and the Township
On April 19, 1934 the railroad company filed its petition for a rehearing and reconsideration, complaining, especially, that the order required it to contribute $25,000 toward the improvement of streets in the Borough of Penn, and alleging that the apportionment of the cost was unreasonable and burdensome to it for the reason that it placed on the railroad company a large share' of the burden, which properly and equitably belonged to the municipal corporations concerned.
On April 25, 1934 the Borough of Penn filed its petition for a rehearing and reconsideration, objecting especially to the abolition of a vehicular crossing at Harrison Street, on the ground of the inconvenience to its citizens, the depreciation of their property caused thereby and the consequent damages, and the lack of adequate fire protection, as the fire engine house is located south of the railroad.
The Commission, on June 25, 1934, dismissed both ■ these petitions. No appeal was taken by any party from this action, or from the order of the Commission of April 2, 1934, within the time limited by law.
Nearly five months thereafter, and nearly four months after the order of the Commission became final and not subject to appeal, on November 17, 1934, the railroad company and the Borough of Penn presented a joint petition asking the Commission to reopen and reconsider its order of April 2, 1934, setting up two new grounds of complaint: (1) That it was feasible
On April 10, 1935 the Attorney General of the Commonwealth, acting on behalf of the Department of Highways, asked leave to intervene as an appellee in the proceedings, which was granted, and he thereupon filed a brief, as attorney for the Department of Highways, intervenor, and an Assistant Deputy Attorney General, a member of his staff, made an oral argument, in support of the order of the Commission and in opposition to the review and reconsideration thereof asked for by the appellants, and the allocation of any of the cost of the proposed improvement against the Department of Highways.
It must be remembered that these appeals were not taken from the order of the Commission of April 2, 1934, or from the order dismissing the several petitions
The present appeals are from an order of the Commission refusing to review and reconsider its original order, made nearly four months after that original order of the Commission had become final and not subject to appeal. In an action at law these appeals would not lie, but would be dismissed as an attempt to evade the statute limiting the time within which appeals may be taken: Mayer v. Brimmer, 15 Pa. Superior Ct. 451, 454. The same strict ruling will not be applied in a proceeding of this kind, but the grounds for a reconsideration should be restricted to the new matters and new or changed conditions set up in the joint petition, which had arisen since and were not presented in the several petitions of these appellants filed April 19, 1934 and April 25, 1934 respectively, and dismissed by the Commission on June 25, 1934 and not appealed from. See D. & H. Co. v. P. S. C., 96 Pa. Superior Ct. 169; A. T. & S. F. Ry. Co. v. United States, 284 U. S. 248. Parties, even in a proceeding of this kind, cannot be permitted, by a second motion to review and reconsider, to raise the same questions which were specially considered and decided against them and not appealed from. A motion to reconsider cannot be made a substitute for an appeal, after the time for taking an appeal has expired.
We are not to be understood, by this action, as approving, in detail, everything contained in the order of April 2, 1934, as on an appeal from that order. But this whole controversy is due in large measure to the
By its failure to appeal in time, the railroad company has relieved us of the necessity of considering this point; but our affirmance of the order of the Commission is not to be understood as approving the practice.
For reasons already given, therefore, we shall not consider, in this appeal, questions which should have been raised on an appeal from the order of the Commission filed April 2, 1934, or from the order refusing to review and reconsider that order, filed June 25,1934. Most of the cases cited by the railroad company deal with those questions, which are not properly before us in this appeal. The very recent decisions of the United States Supreme Court in Lehigh Valley Railroad Co. v. Board of Public Utility Commrs., 278 U. S. 24, and Nashville, Chattanooga & St. Louis Ry. v. Walters, 295 U. S. 405, are in that category. In all of the cases relied on, an appeal was promptly taken by the appellant from the order complained of. In none of them, did the appellant acquiesce with the decision, until the order had become final and not sub
We come then to the new grounds presented for reviewing and reconsidering the order.
(1) The Commission cannot justly be criticized because it did not give much weight to the belated suggestion of the railroad company that a feasible and practicable plan for building an overhead bridge at Harrison Street could be put through at a total cost of $90,000, or about half its previous estimate. Its engineers, who had studied the situation closely for nearly ten years had testified positively that an overhead bridge at Harrison Street was not practicable; that the grade was such as to make the cost of any safe and convenient overhead bridge prohibitive at any point except the Burrell bridge location. Evidence could not be more direct or positive than was furnished by the railroad company’s own engineers that the only site available for an overhead bridge was at the Burrell bridge location. The plan adopted by the Commission was for all practical purposes the plan prepared by the railroad company, which definitely called for the construction of the pedestrian subway at Harrison Street and the reconstruction of the Burrell bridge by the railroad company “in accordance with plans prepared by Pennsylvania Railroad Company.” The positive evidence of the railroad company’s engineers, showing full knowledge of the situation and long study of the problem cannot be set aside by the unsupported affidavit of one of them to the petition proposing the new plan, which calls for a considerable increase of grade to the approaches and a division of the cost of construction and maintenance between the railroad company and the Department of Highways. No reason is given in the petition why this plan could not have been prepared and presented ear
There is ample evidence to support the Commission’s finding that the plan adopted by it is the most feasible and practicable and least expensive method of eliminating the grade crossing.
(2) The other ground for review presented by the appellants may be considered under two heads: (a) the attempt to make the Department of Highways contribute to the cost of eliminating the Harrison Street grade crossing; (b) the effect on the legality of the plan of the failure of the Commission to make the Department of Highways a party to the proceedings.
(a) The Department of Highways, which has intervened in this appeal, relies on the Acts of June 26, 1931, P. L. 1388 and June 1, 1933, P. L. 1402, which amended the tenth section of the Act of May 31, 1911, P. L. 468, establishing the Department of Highways— which section, as originally passed, related to roads, streets and highways in boroughs, and authorized the improvement or reconstruction of certain streets by the Secretary of Highways with the consent of the borough council—and in substance provides that nothing contained in said section ten shall authorize any assessment to be made against the Commonwealth by. reason of, or to assist in the elimination of, any grade crossing on any highway within the limits of a borough or incorporated town, and “no such assessment shall hereafter be made under any act of Assembly heretofore enacted.”
The appellants contend that these amendments are
We will meet this issue when the Commission imposes a part of the cost of eliminating a grade crossing on the Department of Highways, or asserts that it would impose part of such costs on the Department of Highways were it not for these amendments to the Act of 1911, P. L. 468. No one can question the constitutionality of an act of assembly who is not affected or injured by it. The constitutionality of these amendments cannot be questioned in the review of an order which does not mention them, rely upon them, uphold them, reject them or take any action, or refuse to take action, because of them; nor is the new Burrell bridge, to be constructed under the order of the Commission, located in any borough or on the line of a state highway. These amendments are, therefore, not before us for consideration, and we will not pass upon their constitutionality until the question is raised by one who has been injured by a decision affecting them.
(b) But the question does arise as to the effect of the failure of the Public Service Commission to bring the Department of Highways in as a party to these proceedings, following the Act of 1933, P. L. 1172, 1330, which made Harrison Street, at the point where it crosses the Pennsylvania Railroad, a state highway.
Of course, the Commission should have made the Department of Highways a party to the proceedings as
The order of the Commission, dated December 11, 1934, dismissing the joint petition of the Pennsylvania Railroad Company and the Borough of Penn for a rehearing and reconsideration of the Commission’s final order of April 2, 1934 is, for these reasons, affirmed, subject to a corresponding extension of time for the performance of the work, necessitated by our order of supersedeas, and the appeal therefrom is dismissed.