Pennsylvania-American Water Company · Pursuant to your December 30, 1998 letter enclosing the Recommended Decision of Administrative Law Judge Richard M. Lovenwirth in the above-captioned

A

CPvPcPcP

Pennsylvania-American Water Company

800 West Hershey Park Drive • P.O. Box 888 • Hershey, PA 17033-0888

(717) 533-5000 • FAX (717) 531-3213 ..o

Susan D. Simms Associate Corporate Counsel

James J. McNulty, Secretary Pennsylvania Public Utility Commission North Office Building, Room B-20 North St. & Commonwealth Ave., P. O. Box Harrisburg, Pennsylvania 17105-3265

January 11, 1999

Re: Investigation upon the Commission’s own Motion to determine the condition,disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T-439) above-the-grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR 361 417 SV Docket No. 1-00970069

Dear Secretary McNutly:

Pursuant to your December 30, 1998 letter enclosing the Recommended Decision of Administrative Law Judge Richard M. Lovenwirth in the above-captioned proceeding, please be advised that Pennsylvania-American Water Company does not intend to file Exceptions in this proceeding; however, I reserve the right to file Replies to Exceptions.

As evidenced by the enclosed Certificate of Service, all parties to this proceeding have been duly served a copy of this letter.

Enclosure

c: Parties of Record

Respectfully,


\

SRB

Dedicated to Quality Water and Superior Service

An E.E.O. Employer M/F//H/V

BEFORE THEPENNSYLVANIA PUBLIC UTILITY COMMISSION

Investigation upon the Commission’s own motion to determine the condition, disposition, and responsibility for maintenance of the existingcrossing structure carrying Mary Street (T-439) Docket No. 1-00970069above the grade of the track of the Reading, BlueMountain and Northern Railroad Companyin Fairview Township, Luzerne County(AAR 361 417 S)

CERTIFICATE OF SERVICE

I hereby certify that I have this day served a copy of the foregoing documdnp upon the participants, listed below, in accordance with the requirements of §1.54: ^

o

BY FIRST CLASS MAIL

H. James Brozena County of Luzerne Luzerne County Courthouse Wilkes-Barre, PA 18711

Jeffrey H. Sunday, Esq.PG Energy Inc.Wilkes Barre Ctr., 39 Public Square Wilkes-Barre, PA 18711-0601

Eric M. Hocky, Esq.Gollatz, Griffin & Erving, P.C.213 W. Mine St., P. O. Box 796 Chester, PA 19381-0796

David Salapa, EsquirePA PUC Transportation & Safety Rail Division

Harrisburg, PA 17105-3265

Alice Davis. Secretary Fairview Township 65 Shady Tree Drive Fairview, PA 18707

Benjamin C-Dunlap, Jr., Esq.Naumon, Smith, Shisslcr & Hall .c, 200 North Third St., 18"’ FI., PO^Bo^fUO


Jason D. Sharp, Assistant Counsel Department of Transportation Forum Place, 555 Walnut SV-- 9th Fk? Harrisburg, PA 17101-312J

Robert N. Gawlas, Jr, Esquire Fairview Township

Wilkes-Barre, PA 18711

Dated this 11th day of January, 1999.

Susan D. Simms, Esq.Pennsylvania-American Water Company 800 West Hershey Park Drive, P.O. Box 888 Hershey, Pennsylvania 17033-0888 (717)533-5000

LAW OFFICES

Rosenn, Jenkins © Greenwald, L.L.P.15 Soutk Franlelin Street

Wilkes-Barre, Pennsylvania 18711-0075

EUGENE ROTH DANIEL G. FLANNERY MARSHALL S. JACOBSON MURRAY UFBERG BRUCE C. ROSENTHAL DONALD H. BROBST ANTHONY J. DIXON JOSEPH L. PERSiCO HOWARD M. LEVINSON ALAN S. HOLLANDER GARRY S. TAROLI RICHARD A. RUSSO JAMES P. VALENTINE MARK A. VAN LOON LEE 5. PIATT ROBERT D. SCHAUB ROBERT N. GAWLAS, JR. STEVEN P. ROTH JAMES C. OSCHAL **

JOSEPH G. FERGUSON GEORGE F. SHOVLIN it MARY GRIFFIN CUMMINGS MARY JO KISHEL PATRICIA ERMEL LAKHIA H MARK W. DRASNIN LAWRENCE W. ROTH ELIZABETH C. LEO * NICHOLAS C. STROUMBAKJS MICHAEL K. DURICKO ERNEST A. SPOSTO. JR. THOMAS J. MacNEELY MICHAEL BRIECHLE

Of Counsel:

HAROLD ROSENN JOSEPH J. SAVTTZ

Telephone

570-826-5600

Telecopier

STo-eae-se^o

Direct Dial 570-826-568

Direct Fax 570-83 1-72 I 5

Also admitted to practice in; * New York B Washington, D.C.

t New Jersey it Florida

1El\/T January 19, 1999

Pennsylvania Public Utility Commission Prothonotary’s Office P.O. Box 3265 Harrisburg, PA 17105-3265

JAN 1

Internet

WWW.NEPALAW.COM

E-MailRJG@NEPAI_AW.COM

Hazleton Office

l 20 East Broad Street

West Hazleton, PA 18201

Telephone 570--455-7 I I 2

Telecopier

570-455-8304

lossRe: In Re: Investigation - Fairview Townflfl^^"^ UTILITY COMMISSION:

Docket No. 1-00970069 SECRETARY'S BUREAU

To Whom it May Concern:

Enclosed for filing in the above matter are the original and nine (9) copies of the Exceptions of Fairview Township, with an attached Certificate of Service, as well as a United States Postal Service Form 3817 Certificate of Mailing, attached to the cover of the original Exceptions of Fairview Township.

Also enclosed is an extra copy of the Exceptions of Fairview Township, which we would appreciate your time-stamping and returning to us in the stamped, self-addressed envelope enclosed for your convenience.

As indicated on the Certificate of Service, one (1) copy of the Exceptions of Fairview Township is being served on each party of record, as well as the Honorable Richard M. Lovenwirth, Administrative Law Judge.

\ 210966.1

✓

Rosenn, Jenkins & Greenwald, L.L.p.

Pennsylvania Public Utility Commission Prothonotary’s Office January 19, 1999 Page 2

Thank you for your attention to this matter. If you should have any questions, of course, please don’t hesitate to call at your convenience.

RNG/IaoEnclosures

cc: Honorable Richard M. Lovenwirth, Administrative Law Judge (w/enclosures)David Salapa, Esquire (w/enclosures)Susan Simms, Esquire (w/enclosures)Jason D. Sharp, Esquire (w/enclosures)Eric M. Hocky, Esquire (w/enclosures)Benjamin C. Dunlap, Jr., Esquire (w/enclosures)Jeffrey H. Sunday, Esquire (w/enclosures)H. James Brozena (w/enclosures)

Sincerely,

ROBERT N. GAWLAS, JR.

210966.1

COMMONWEALTH OF PENNSYLVANIA

BEFORE THE

PENNSYLVANIA PUBLIC UTILITY COMMISSION

Investigation Upon the Commission’s Own Motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T439) above-the-grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR 361 417 S).

Docket Number

1-00970069

EXCEPTIONS OF FAIRVIEW TOWNSHIP . .w r,OW^S.

JAN 20 7999

^u/l?£/VrfOLDeft

ROSENN, JENKINS & GREENWALD, L.L.P.

BY:ROBERT N. GAWLAS, JR? ESQUIRE

Attorney I.D. #46608 15 South Franklin Street Wilkes-Barre, PA 18711-0075 (717) 826-5600

Attorneys for FAIRVIEW TOWNSHIP

DATED: January 19, 1999

210575,1

TABLE OF CONTENTS

Page

INTRODUCTION......................................................................................................................................1

EXCEPTIONS............................................................................................................................................ 1

1. ALLOCATION OF COSTS AND RESPONSIBILITY................................................... 1

1(a). Allocation to RBM&N ......................................................................................... 2

1(b). Allocation to PAWC and PGE ...........................................................................7

1(c). Allocation to Pennsylvania Department of Transportation............................. 9

1(d). Exception in the Alternative to Allocation....................................................... 10

2. FUTURE MAINTENANCE OF BRIDGE.........................................................................11

3. TIME PERIOD IN WHICH PROJECT MUST BE COMPLETED...............................12

4. INSTALLATION OF METAL GUIDE RAILS................................................................14

CONCLUSION ........................................................................................................................................14

210575.1 1

V

EXCEPTIONS OF FA1RVIEW TOWNSHIP

INTRODUCTION

FAIRVIEW TOWNSHIP (sometimes hereinafter referred to as “TOWNSHIP”), through its

attorneys, Rosenn, Jenkins & Greenwald, L.L.P., files the following exceptions to the Recommended

Decision of the Honorable Richard M. Lovenwirth, Administrative Law Judge, which was issued

on December 30, 1998.

As more fully set forth below, FAIRVIEW TOWNSHIP takes exception to Paragraphs 3

through 8, 12, 17 through 19, and 21 through 24 of the Recommended Decision’s Section V,

Proposed Order (pages 69-74), as well as all corresponding sections of the Proposed Findings of

Fact, Proposed Conclusions of Law, and Discussion contained in the Recommended Decision.

ALLOCATION OF COSTS AND RESPONSIBILITY

1. FAIRVIEW TOWNSHIP takes exception to the proposed Allocation of Costs

contained in the Recommended Decision, as well as to the recommendation that the TOWNSHIP

be obligated, at its initial cost and expense: (1) to prepare and submit construction plans for the

demolition and removal of the existing bridge and the construction of a new bridge; (2) to prepare

and submit metes and bounds description of railroad property; (3) to furnish all material and do all

work necessary to construct the new bridge and highway approaches in accordance with approved

construction plans; and (4) to furnish all materials and do all work necessary to maintain the

210575.1 1

substructure and superstructure of the bridge, all as being an unjust and unreasonable allocation of

cost, expense and responsibility.

In this regard, the TOWNSHIP takes exception to Paragraphs 6 through 8,12,17 through 19,

and 21 through 24 of the Proposed Order found at Section V of the Recommended Decision.

(Recommended Decision “R.D.” pages 69-74).

FAIRVIEW TOWNSHIP submits that: (1) Reading, Blue Mountain and Northern Railroad

Company (“RBM&N”) should be given the responsibility, at its initial cost and expense, to perform

the obligations which the Recommended Decision suggests should be assigned to FAIRVIEW

TOWNSHIP, at Paragraphs 6 through 8, 12, 17 through 19, and 21 through 24; (2) RBM&N,

LUZERNE COUNTY (“the COUNTY”), Pennsylvania American Water Company (“PAWC”), and

PG Energy (“PGE”), should be allocated greater shares of the cost and expense involved in the work

recommended by the Recommended Decision; (3) PennDOT should be allocated a share of such cost

and expense. FAIRVIEW TOWNSHIP also takes exception, in the alternative, to the failure of the

Recommended Decision to require the other parties to also contribute to the cost and expense of the

demolition and removal of the existing bridge.

Allocation to RBM&N

1(a). The Recommended Decision suggests that, despite previous actions of the

Commission, it is appropriate that RBM&N bear only forty (40%) percent of the project cost, instead

of one hundred (100%) percent as its predecessors-in-title, the Central Railroad of New Jersey and

CONRAIL, had done. (R.D. page 58). In reaching this conclusion, the Recommended Decision

cites purported changes in circumstances which it suggests support the recommended change in the

210575.1 2

allocation of responsibility. The Recommended Decision acknowledges that an administrative

agency “‘must render consistent opinions and should either follow, distinguish or overrule its own

precedent.’” (R.D. pages 32 - 33, citing Bell Atlantic v. Pennsylvania Public Utility Commission.

672 A.2d 352 (Pa. Cmwlth. 1996); Standard Fire Insurance Co. v. Insurance Department. 148 Pa.

Cmwlth. 350,611 A.2d 356 (1992)). However, in reaching the conclusion that the existing situation

warrants a change from past Commission Orders, the Recommended Decision fails to sufficiently

distinguish the existing situation from those at the time of the previous Orders.

At Section IV. 3 (R.D. pages 33-35), the Recommended Decision notes that the rail line

located below the crossing structure was conveyed to RBM&N by CONRAIL by Deed dated August

19,1996, whereby RBM&N agreed to assume all existing and future obligations and responsibilities

imposed by the Commission for, among other things, the Mary Street Bridge, including but not

limited to the removal, repairing or restoration of the Bridge as ordered by the Commission. The

Recommended Decision correctly finds that RBM&N is the current owner of the rail line at the Mary

Street crossing. (R.D. page 34).

In this same section, however, the Recommended Decision incorrectly states “[t]here was no

evidence presented about the circumstances surrounding the construction, or even the ownership of

the [Mary Street Bridge].” (R.D. page 34). This is directly at odds with the record and with the

Recommended Decision’s own Proposed Findings of Fact, Paragraphs 6 and 10 (R.D. pages 6-7),

which find that the bridge was built in 1894 by the Central Railroad of New Jersey, predecessor-in-

title to CONRAIL and RBM&N. (citing N.T. 37; RBM&N Statement No. 1, Question 3 and

attached Exhibits; and TOWNSHIP Exhibit 24). There was no evidence submitted that ownership

210575.1 3

of the bridge was transferred from the Central Railroad of New Jersey, CONRAIL or RBM&N to

any other party.

The Recommended Decision, at page 34, also inappropriately states that “CONRAIL has

testified many times before this Commission that they (sic) did not receive ownership of any

highway bridge over its tracks.” However, the Recommended Decision fails to cite any reference

to the record for this contention, which should be refused by the Commission pursuant to the

Commonwealth’s Court decision in East Rockhill Township v. Pennsylvania Public Utility

Commission. 540 A.2d 600, 605 (Pa. Cmwlth. 1998).

In any event, the Recommended Decision notes that ownership of the track is a more

important factor. In this regard, the Recommended Decision appropriately finds that RBM&N is the

current owner of the rail line at the Mary Street crossing (R.D. pages 5-6, 34), and there was no

evidence that any entity other than the Central Railroad of New Jersey, CONRAIL or RBM&N ever

owned the rail line at the crossing.

Accordingly, in this regard, there was no change in situation to justify a change in the

allocation of responsibility for the crossing.

At Section IV. 6 (R.D. pages 43-45), the Recommended Decision states that FAIRVIEW

TOWNSHIP, LUZERNE COUNTY, PennDOT, or RBM&N could have been selected to construct

the new bridge and highway approaches. (R.D. pages 43-44). The Recommended Decision,

however, fails to sufficiently explain why the TOWNSHIP, which previously had never been

responsible for repair or maintenance of the substructure or superstructure of the bridge, should now

be selected for primary responsibility for replacement of the bridge and for future maintenance.

210575.1 4

Instead, at Section IV. 8. (R.D. pages 52-54), the Recommended Decision states:

The circumstances at this crossing have changed since its original construction. First the bridge was constructed to allow the railroad to get through. Now the bridge needs to be replaced to accommodate the highway traveler. The new bridge will benefit the railroad in that the benefits associated with a grade separated crossing will continue. The local residents will get a new crossing that is safe, i.e. two lanes versus single lane, acceptable legal loads and improved highway approaches. The rail line has changed hands several times, with a much smaller railroad, with fewer train movements, now owning the rail line.

(R.D. pages 53-54).

However, the Recommended Decision fails to recognize that the bridge is still required

because of the presence of the railroad tracks below it. Previously, there had been an at-grade

crossing at the lower end of Lehigh Street. The bridge was built in 1894 so that the railroad would

have the benefit of a separated grade crossing. If the railroad tracks were not located where they are,

there would have been no need for construction of the bridge in the first place: the lower end of

Lehigh Street could have continued to have been used for ingress and egress to Solomon Gap.1

Likewise, it is the continued presence of the railroad tracks which continues to require the separated

grade crossing in this area. The situation is the same in this regard as it was at the time of the

previous Commission Orders placing the responsibility for the Mary Street Bridge upon the railroad. *

'In this regard, the Recommended Decision’s Proposed Finding of Fact 35 (R.D. page 14), which asserts that “Lehigh Street, in the area of the old railroad crossing, was vacated in 1927”, is not supported by the Record. Instead, it was the upper end of Lehigh Street, at the other end from the old at-grade crossing, which was vacated in 1927. See N.T. 94-96, 111, 113, 125-126.

210575.1 5

Only the ownership of the railroad tracks has changed. What has not changed is the fact that the

bridge is made necessary by the presence of the railroad tracks.

Therefore, the replacement of the Mary Street Bridge puts FAIRVIEW TOWNSHIP in no

better position than it occupied when the existing structure was first constructed by the railroad.

The fact that RBM&N may be a smaller railroad than CONRAIL, with fewer train

movements, does not justify imposing more of the costs and responsibility on the TOWNSHIP. As

the Recommended Decision notes, RBM&N had a full opportunity to review the lines it was

purchasing from CONRAIL pursuant to the Deed whereby it agreed to assume all present and future

obligations imposed by the Commission with regard to the bridge.

In addition, as discussed further below, it must also be noted that, whereas past Commission

Orders had required the railroad to maintain the substructure and superstructure of the bridge, the

Recommended Decision recommends that the TOWNSHIP be made responsible for the maintenance

of the substructure and superstructure of the new bridge.

In this case, the Recommended Decision is inconsistent with previous Orders of the

Commission and fails to sufficiently follow, distinguish or overrule the Commission’s own

precedent. Bell Atlantic v. Pennsylvania Public Utility Commission. 672 A.2d 352, 354 (Pa.

Cmwlth. 1996).

FAIRVIEW TOWNSHIP submits that, of the five factors discussed by the Commonwealth

Court in Greene Township v. Pennsylvania Public Utility Commission. 668 A.2d 615, 619 (Pa.

Cmwlth. 1995), most, if not all, require that RBM&N, in its own right and as successor-in-title to

Central Railroad of New Jersey and CONRAIL, be assigned primary responsibility for removing the

existing bridge and building a new bridge at the crossing. In this regard, (1) RBM&N is the

210575.1 6

successor-in-title to Central Railroad of New Jersey, which originally built the Mary Street Bridge;

(2) RBM&N is the successor-in-title to Central Railroad of New Jersey and CONRAIL, which

owned and maintained the crossing and have historically been charged with the obligations of

maintaining the crossing; (3) the benefit initially conferred with the construction of the bridge was

that of the Central Railroad of New Jersey, which received the benefits of a separated grade crossing,

benefits which the Recommended Decision finds RBM&N continues to enjoy today; (4) to the

extent that the current condition of the Mary Street Bridge is the result of negligent maintenance, the

responsibility lies with RBM&N, as the successor-in-title to Central Railroad of New Jersey and

CONRAIL; and (5) RBM&N, as noted by the Recommended Decision, will receive substantial

benefit from the replacement of the Mary Street Bridge. See Greene Township. 668 A.2d at 619.

With regard to the allocation of costs, expenses and responsibility to RBM&N, the following

portions of the Initial Brief of F AIRVIEW TOWNSHIP, and the portions of the Record cited therein,

are incorporated by reference and citation: Section III, Summary of Testimony, pages 2-6; Section

IV, Proposed Findings of Fact, Paragraphs 1 through 8,12,67, and 71; Section VI, Argument, pages

31-36; Section VII, Proposed Conclusions of Law, Paragraphs 4, 5, 6, 8, and 9; and Section VIII,

Proposed Order, Paragraph 1. The following portions of the Reply Brief of FAIRVIEW

TOWNSHIP, and the portions of the Record cited therein, are incorporated by reference and

citation: Section II, Argument, pages 1-4.

Allocation to PAWC and PGE

1 (b). FAIRVIEW TOWNSHIP also submits that the Recommended Decision should have

allocated a greater share of the costs and expenses to the PENNSYLVANIA-AMERICAN WATER

210575.1 7

COMPANY (“PAWC”) and to PG ENERGY (“PGE”), which have attached mains to the Mary

Street Bridge, since those utilities have derived greater benefit from the existing bridge and will

derive greater benefit from the new bridge than is recognized by the Recommended Decision. The

Recommended Decision suggests imposing upon them only the burden of removing their own

facilities from the bridge before it is demolished and relocating those facilities to accommodate the

construction of the new bridge. (R.D. pages 61 and 72, paragraph 13).

In this regard, however, the Recommended Decision’s Proposed Findings of Fact, at

Paragraphs 47 through 51 (R.D. pages 17-18), find that PAWC and PGE have mains attached to the

Mary Street Bridge and, if there were no bridge at the crossing, the utilities would have to relocate

their facilities or build their own structure across the railroad or suffer the interruption of service to

their customers in the area. Further, the evidence demonstrated that neither utility has paid for the

use of the bridge to which to attach their mains.

At Section IV. 8.F. (R.D. pages 58-61), the Recommended Decision quite appropriately

determines that the utilities receive a benefit from the placement of their facilities on the bridge: they

occupy the public right-of-way free of charge, do not incur property taxes, save the cost of

purchasing a private right-of-way, and gain access to existing public facilities. Further, the

Recommended Decision properly cites City of Reading. 62 Pa. PUC 1,10(1986) and PennDOT. 65

Pa. PUC 340 (1987) for the proposition that the utilities benefit by the existence of the bridge by

saving the expense of building a utility bridge to support their lines or tunneling their lines under the

railroad tracks. (R.D. pages 58-61). Despite this analysis, however, the Recommended Decision

inexplicably recommends that the utilities should not bear any cost to construct the new bridge, but

should be required only to bear their respective costs to relocate their facilities to accommodate the

210575.1 8

project and, if they wish to attach their facilities to the new bridge, to bear the cost to design and

construct supports for their facilities on the new bridge.

Since the utilities presumably would have to bear these costs in any event, they should, in

addition, be allocated some share of the cost and expense to remove the existing bridge and

construct the new bridge, since this work will continue to save the utilities the cost of property taxes,

the purchase of a private right-of-way and the expenses associated with building a utility bridge

across the railroad tracks or tunneling their lines beneath the railroad tracks.

In the alternative, the Commission should prohibit the utilities from attaching their facilities

to the new bridge unless and until they have negotiated a right-of-way agreement with the party or

parties ultimately found responsible for the construction and future maintenance of the new bridge.

The following portions of the Initial Brief of FAIRVIEW TOWNSHIP, and the portions of

the Record cited therein, are incorporated by reference and citation: Section III, Summary of

Testimony, pages 11-12; Section IV, Proposed Findings of Fact, Paragraphs 34,35 and 52; Section

V, Summary of Argument, pages 29-30; Section VI, Argument, pages 39-40; Section VII, Proposed

Conclusions of Law, Paragraph 11; and Section VIII, Proposed Ordering Paragraphs 2 and 3. The

following portions of the Reply Brief of FAIRVIEW TOWNSHIP, and the portions of the Record

cited therein, are incorporated by reference and citation: Section II, Argument, subpart 4, at pages

11-12.

Allocation to Pennsylvania Department of Transportation

1 (c). FAIRVIEW TOWNSHIP takes exception to the Recommended Decision’s suggestion

that PennDOT not be assessed any responsibility for the cost and expense necessary to replace the

210575.1 9

current Mary Street Bridge, as set out in Recommended Decision at Section IV.8.B, page 51. In this

regard, the following portions of the Initial Brief of FAIRVIEW TOWNSHIP, and the portions of

the Record cited therein, are incorporated by reference and citation: Section III, Summary of

Testimony, pages 5 and 8-11; Section IV, Proposed Findings of Fact, Paragraphs 10,11,12,16,18,

21,22,23,25,26,30,32 and 57; Section V, Summary of Argument, page 29; Section VI, Argument,

pages 36 and 39; Section VII, Proposed Conclusions of Law, Paragraph 10; and Section VII,

Proposed Ordering Paragraph 2. The following portions of the Reply Brief of FAIRVIEW

TOWNSHIP, and the portions of the Record cited therein, are incorporated by reference and citation:

Section II, Argument, pages 8 through 11.

Exception in the Alternative to Allocation

1 (d). In the alternative, FAIRVIEW TOWNSHIP takes exception to the suggestion of the

Recommended Decision that the TOWNSHIP perform all of the work directed by the Proposed

Order at the TOWNSHIP’S initial cost and expense, to be reimbursed by the other responsible parties

only after the completion of the work and certification by the Commission, as set out in the

Recommended Decision, Section V, Proposed Order, Paragraphs 6 through 9 and 21 through 23

(R.D. pages 70-71 and 73-74), since the TOWNSHIP is financially unable to replace the bridge and

no funds are currently available to it. In this regard, the following portions of the Initial Brief of

FAIRVIEW TOWNSHIP, and the portions of the Record cited therein, are cited and incorporated

by reference: Section III, Summary of Testimony, pages 6, 8, 11 and 12; Section IV, Proposed

Findings of Fact, Paragraphs 33, 56, 60, 61, 63, 64, 65 and 67; Section VIII, Proposed Ordering

210575.1 10

Paragraphs 1 and 2. The following portions of the Reply Brief of FAIRVIEW TOWNSHIP, and the

portions of the Record cited therein, are cited and incorporated by reference: Section II, Argument.

FAIRVIEW TOWNSHIP contends that, if it is to be responsible for performing the work

recommended by the Recommended Decision, then the other responsible parties should be required

to contribute proportionately to the cost and expense of that work, on a going forward basis,

including not only work related to the design and construction of the new bridge, but also to the

demolition and removal of the existing bridge, or, at the very least, should be required to reimburse

FAIRVIEW TOWNSHIP for their proportionate share of all related costs and expenses, including

but not limited to principal and interest incurred in financing such work.

FUTURE MAINTENANCE OF BRIDGE

2. FAIRVIEW TOWNSHIP takes exception to the proposed assignment to the

TOWNSHIP, at its sole cost and expense, to furnish all materials and do all work necessary to

maintain the substructure and superstructure of the Mary Street Bridge, contained in the

Recommended Decision’s Proposed Order at Paragraph 24 (R.D. page 74) and at Section IV.9, pages

61-63 and at Proposed Conclusion of Law 11, pages 65-66.

No authority is provided by the Recommended Decision to support its statement at Proposed

Conclusion of Law 11 that Bridge Bill funding would require the TOWNSHIP to assume future

maintenance of the bridge and, in any event, the Recommended Decision’s Proposed Finding of Fact

30 (R.D. page 13) recognizes there is no guarantee that Bridge Bill funding will ever become

available to the TOWNSHIP.

210575.1 11

Instead, FAIRVIE W TOWNSHIP submits that, consistent with previous Commission Orders,

RBM&N, as the owner of the Bridge, should be required to incur the costs of maintaining the

substructure and superstructure. In this regard, the following portions of the Initial Brief of

FAIRVIEW TOWNSHIP, and the portions of the Record cited therein, are incorporated by reference

and citation: Section III, Summary of Testimony, pages 2 through 4,6, and 12; Section IV, Proposed

Findings of Fact, Paragraphs 1 through 5, 36 through 39, 44, and 66 through 69; Section VI,

Argument, pages 33-36; Section VII, Proposed Conclusions of Law, Paragraphs 6, 8,9 and 11; and

Section VIII, Proposed Ordering Paragraph 7. The following portions of the Reply Brief of

FAIRVIEW TOWNSHIP, and the portions of the record cited therein, are incorporated by reference

and citation: Section II, Argument, pages 1 through 4.

In the alternative, if FAIRVIEW TOWNSHIP is to have any future responsibility for

maintaining the substructure and superstructure of the new bridge, it contends that the other

responsible parties should be required to contribute a proportionate share of the costs and expenses

relating to such future maintenance.

TIME PERIOD IN WHICH PROJECT MUST BE COMPLETED

3. Subject to, and without waiving the exceptions discussed above, FAIRVIEW

TOWNSHIP takes exception to the Recommended Decision to the extent it provides an inadequate

period of time within which to commence and complete the recommended work. The Recommended

Decision’s Proposed Order, at Paragraphs 6, 7 and 8 (R.D. pages 70-71), appears to require the

completion of all of the work within only two years after the date of service of the Commission’s

210575.1 12

Order. However, the TOWNSHIP submits that this is an inadequate period of time within which to

commence and complete the necessary work and, instead, submits that a period of three to five years

from the date of service of the Commission’s Order should be allowed within which to complete the

work required by the Recommended Decision, which would include preliminary engineering work,

final design, bidding, the removal of the existing bridge, and the construction of the new bridge.

In this regard, the time limits set out in the Proposed Order are shorter even than the periods

recognized by the Recommended Decision at other sections as necessary for the work and, further,

are shorter than the periods established by the Record as necessary for the conduct of the work.

For example, at Page 43, the Recommended Decision notes:

“I realize it will take twelve to eighteen months to design the bridge and relocate the utilities. Then another nine to twelve months to construct the new bridge and highway approaches. Staff engineer,Mr. Ron Hull, estimated it would take two years to prepare plans and obtain review and approval to replace the crossing structure.” (N.T.262)....

Accordingly, by the Recommended Decision’s own calculation, it might take as long as two

and one-half years to design and construct the new bridge and highway approaches. Mr. Hull,

however, estimated that it will take two years merely to prepare plans and obtain review and

approval. His two-year estimate does not include the time necessary to actually remove the existing

bridge and construct the new bridge. (N.T. 262). Likewise, FAIRVIEW TOWNSHIP’S engineering

consultant, Michael Hannagan of Borton-Lawson Engineering, testified that it would require three

to five years to replace the bridge. (N.T. 150).

Therefore, the two years provided by the Recommended Decision within which to design and

construct the new Mary Street Bridge is inadequate. Instead, the Commission should order that the

210575.1 13

party or parties responsible for replacing the Bridge make good faith efforts to complete the

replacement of the Bridge within a three- to five-year period.

INSTALLATION OF METAL GUIDE RAILS

4. FAIRVIEW TOWNSHIP takes exception to Section IV. 4 of the Recommended

Decision, at page 36, to the extent it suggests the TOWNSHIP has not complied with the

Commission’s Order to effectively close the Bridge to all traffic. On the contrary, the TOWNSHIP

has done so. In any event, with regard to Paragraphs 3 through 5 of the Proposed Order, FAIRVIEW

TOWNSHIP has already installed metal guide rails across both ends of the bridge, thereby

effectively closing the bridge to vehicular traffic, in accordance with Paragraph 3 of the Proposed

Order. Accordingly, this obviates Paragraphs 3 and 4 of the Proposed Order, thereby imposing upon

RBM&N the responsibilities set out at Paragraph 5 of the Proposed Order.

CONCLUSION

For all of the reasons stated above, FAIRVIEW TOWNSHIP takes exception to the

Recommended Decision issued December 30, 1998 and, instead, respectfully requests that the

Commission adopt the Proposed Ordering Paragraphs submitted by FAIRVIEW TOWNSHIP at

Section VIII of its Initial Brief, or in the alternative, that (1) a greater share of the cost and expense

to perform the necessary work be allocated to RBM&N, PAWC, PGE and PennDOT; (2) if

FAIRVIEW TOWNSHIP is required to perform all of the work directed by the Proposed Order, then

210575.1 14

the other responsible parties should be required to contribute proportionately to the cost and expense

of that work, on a going forward basis, including not only work related to the design and construction

of the new bridge, but also to the demolition and removal of the existing bridge; (3) if PAWC and

PGE are not required to contribute to the cost and expense of removing the existing bridge and

constructing the new bridge, they should be prohibited from attaching their facilities to the new

bridge unless and until they have negotiated a right-of-way agreement with the party or parties

responsible for the construction and future maintenance of the new bridge; (4) if FAIRVIEW

TOWNSHIP is to have any future responsibility for maintaining the substructure and superstructure

of the new bridge, the other responsible parties should be required to contribute a proportionate share

of the costs and expenses relating to such future maintenance; and (5) if FAIRVIEW TOWNSHIP

is to be responsible for performing the work necessary to demolish and remove the existing bridge

and construct the new bridge, it should make good faith efforts to complete the replacement of the

bridge within a three- to five-year period, rather than the two-year period suggested by the

Recommended Decision.


ROBERT N. GAWLAS,fR., ESQUIRE

Attorney I.D. #46608 15 South Franklin Street Wilkes-Barre, PA 18711-0075 (717) 826-5600


210575.1 15


BEFORE THE


Investigation Upon the Commission’s Own Motion to determine the condition, disposition, jand responsibility for maintenance of the Docket Numberexisting crossing structure carrying Mary Street j(T439)above-the-gradeofthe track of the 1-00970069Reading, Blue Mountain and Northern Railroad Company in Fairview Township,Luzerne County (AAR 361 417 S).


The undersigned certifies that on January 19,1999, he filed the original and nine (9) copies

of the Exceptions of Fairview Township, by First Class U.S. Mail addressed to:

Commonwealth of Pennsylvania Pennsylvania Public Utility Commission

Prothonotary’s Office P.O. Box 3265


The undersigned certifies that on January 19,1999, he served one (1) copy of the Exceptions

of Fairview Township upon each the following by First Class U.S. Mail:

The Honorable Richard M. Lovenwirth Administrative Law Judge

Room 317, State Office Building 100 Lackawanna Avenue

Scranton, PA 18503

David Salapa, Esquire Pennsylvania Public Utility Commission

Bureau of Transportation and Safety P.O. Box 3265

Harrisburg, PA 17105

- AND-

210575.1

Susan Simms, Esquire Pennsylvania-American Water Company

800 West Hershey Park Drive P.O. Box 888

Hershey, PA 17033-0888

Jason D. Sharp, Esquire Commonwealth of Pennsylvania

Department of Transportation Forum Place - Ninth Floor

555 Walnut Street Harrisburg, PA 17101-1900

Jeffery H. Sunday, Esquire PG Energy, Inc.One PEI Center


Eric M. Hocky, Esquire 213 West Miner Street

P.O. Box 796West Chester, PA 19381-0796

Benjamin C. Dunlap, Jr., Esquire Nauman, Smith, Shissler & Hall

18th Floor, 200 North Third Street P.O. Box 840


H. James Brozena County of Luzerne

Luzerne County Courthouse 200 North River Street



BY:ROBERT N. GAWLASr R., ESQUIREAttorney LD. No. 46608 15 South Franklin Street Wilkes-Barre, PA 18711 (717) 826-5600


* 4

Gollatz, Griffin & Ewing, p.c.ATTORNEYS AT LAW

PHILADELPHIA OFFICE: SIXTEENTH FLOOR

TWO PENN CENTER PLAZA PHILADELPHIA, PA 19102

(215) 563-9400

213 WEST MINER STREET POST OFFICE BOX 796

WEST CHESTER, PA 19381-0796DELAWARE COUNTY OFFICE:

205 NORTH MONROE STREET POST OFFICE BOX 1430

MEDIA, PA 19063 (610) 565-6040

Telephone (610) 692-9116 Telecopier (610) 692-9177

E-MAIL: [email protected]

ERIC M. HOCKY

RECEIVEDJanuary 19, 1999

JAN 19 1SS3

FedExJames J. McNulty, Secretary Pennsylvania Public Utility Commission

'A PUBLIC UTILITY COMMISSiC SECRETARY'S BUREAU

North Office Building, Room B-20 North Street and Commonwealth Avenue P.O. Box 3265Harrisburg, PA 17105-3265

Re: Investigation upon the Commission's own motion todetermine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T-439) above the grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR 361 417 S).Docket No. 1-00970069Exceptions of Reading Blue Mountain &Northern Railroad Company

Dear Secretary McNulty:

Enclosed for filing in the above-captioned proceeding are an original and nine (9) copies of the Exceptions of Reading Blue Mountain & Northern Railroad Company. In accordance with 52 Pa. Code §1.11(a)(2), attached to this letter is the FedEx "receipt." Copies of the Exceptions have been served on the parties of record as stated on the Certificate of Service attached to the Exceptions.

EMH/bahH:\WPDATA\TRANS\RBMN\MARY\PUC05.WPD

James J. McNulty, Secretary

January 19, 1999 Page 2

Kindly time stamp the extra copy of this letter to indicate receipt and return it to me in the stamped self-addressed envelope provided for your convenience.

Enclosures

Respectfully,

cc: {w/encl.)The Honorable Richard M. Lovenwirth, ALJ Parties of Record


RECEIVEDBefore the

JAN IS

PENNSYLVANIA PUBLIC UTILITY COMMISSION°A PUBLIC UTILITY COMMISSIO

_ _ _ _ _ _ _ _ _ _ _ _ SECRETARY'S BUREAU

Investigation upon the Commission’s own motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T439) above the grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR 361 417 S)

)))) Docket No. 1-00970069)))))

EXCEPTIONS OFREADING BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY

- - - - - - - docketedjan 21 ra"

Eric M. HockyGOLLATZ, GRIFFIN & EWING, P.C. 213 West Miner Street P.O. Box 796West Chester, PA 19381-0796 (610) 692-9116

Attorneys for Reading Blue Mountain & Northern Railroad Company

Dated: January 19,1999

H:\WPDATA\TRANS\RBMN\MARY\EXCEPTNS.DOC

EXCEPTIONS OFREADING BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY

Pursuant to 52 Pa. Code §5.533, Reading Blue Mountain & Northern Railroad

Company ("RfiMN") hereby files the following exceptions to the Recommended Decision of

Administrative Law Judge Richard M. Lovenwirth dated December 7, 1998 (issued by the

Commission on December 30, 1998):

1. Exception to Proposed Finding of Fact No. 11

This Finding of Fact is accurate so far as it goes. However, it is incomplete. As the

testimony presented at the April 14, 1998, hearing made clear, because of the rock “gap” noted in

the Proposed Finding of Fact, no at-grade crossing is possible at this location. See Initial Brief of

RBMN at 5 and Appendix A at 2, 8. Accordingly, RBMN believes the Proposed Finding of Fact

should be amended to add the following: teNo at-grade crossing is possible at this location. Tr. 165;

Blue Mountain Statement No. 1.

2. Exception to Proposed Conclusion of Law No. 18, Proposed Order No. 21

In determining that RBMN be allocated 40% of the cost of removal and

reconstruction of the Bridge, ALJ Lovenwirth relied to a great extent on the “benefit” RBMN

receives from the crossing. See Proposed Conclusion of Law No. 18. However, the only benefit to

RBMN described in the Recommended Decision, is the benefit RBMN is perceived to receive from


a separated crossing. See Recommended Decision at 57-58. While a change from an at-grade

crossing to separated crossing may benefit a railroad as well as the traveling public, that is not the

situation here where the overhead bridge is merely being replaced. See Initial Brief of RBMN at 11.

Additionally, because of the topography, no at-grade crossing is physically possible. See Exception

No. 1 above. Thus, the purpose of replacing the Mary Street Bridge is not to reduce liability risks

to the railroad, but is necessary merely to span the rock gap to provide the desired access between

two sections of the Township.

Thus, Proposed Conclusion of Law No. 18 should be revised to provide that the

bridge replacement will not benefit RBMN, and the allocation to RBMN set forth in Proposed Order

No. 21 should be eliminated or substantially reduced.

3. Exception to Proposed Order No. 21

The ordering paragraphs, and specifically the order allocating a portion of the cost

to RBMN, should acknowledge that if state or federal funds become available, then the requirements

of such funding will supersede the cost allocations set forth in the order. ALJ Lovenwirth

acknowledges that the requirements of such funding are inconsistent with the allocations he is

recommending. Recommended Decision at 47. If federal funds are used, applicable federal law

prohibits any part of the cost being allocated to a railroad. Recommended Decision at 47-48; Initial

Brief of RBMN at 11 n.5. Similarly, if state bridge bill funds are used, the statutes provide that the

local municipality be responsible for 20% of the project cost, with the remaining 80% coming out

of the State Motor License Fund. Recommended Decision at 48 (citing Borough of South

H:\WPDATA\TRANS\RBMN\MARY\EXCEPTNS.OOC2

Greensburg v. PUC, 117 Comwlth Ct 361, 367 (1988)). Accordingly, if such funds become

available, they should supersede the allocations set forth in the proposed order, and no portion of the

cost of removal or reconstruction should be allocable to RBMN.

Conclusion

For the foregoing reasons, RBMN requests that the Recommended Decision and

Proposed Order be modified as set forth above.

Respectfully submitted,

213 West Miner Street P.O. Box 796West Chester, PA 19381-0796 (610) 692-9116

& EWING, P.C.


Dated: January 19, 1999

H:\WPDATA\TRANS\RBMN\MARY\EXCEPTNS.DOC3


I hereby certify that I have this day served a true copy of the foregoing document by

first class mail, postage prepaid, upon the participants listed below, in accordance with the

requirements of § 1.54 (relating to service by a participant):

David Salapa, Esq.Pennsylvania Public Utility Commission Bureau of Transportation and Safety North Office Building Commonwealth Avenue and North Harrisburg, PA 17105

Jeffery H. Sunday, Esq.PG Energy Inc.One PEI Center Wilkes-Barre, PA 18711

H. James Brozena County of Luzerne Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711-1001

Jason D. Sharp, Esq.Assistant Counsel Department of Transportation Forum Place - 9th Floor 555 Walnut Street Harrisburg, PA 17101-1900

Susan D. Simms, Esq.Associate Corporate Counsel Pennsylvania-American Water Co.800 West Hershey Park Drive Hershey, PA 17033-0888


Robert N. Gawlas, Jr., Esq.Rosenn, Jenkins & Greenwald 15 South Franklin Street Wilkes-Barre, PA 18711

Benjamin C. Dunlap, Jr., Esq.Nauman, Smith, Shissler & Hall 200 North Third Street, 18th FI.Harrisburg, PA 17108-0840

and one true copy of the foregoing document by first class mail, postage prepaid, upon:

Administrative Law Judge Richard M. Lovenwirth Room 317 State Office Building 100 Lackawanna Avenue Scranton, PA 18503

Dated this 19th day of January, 1999.

ERIC M. HOCK"GOLLATZ, GRIFFIN & EWING, P.C. 213 West Miner StreetP.O. Box 796WestChester, PA 19381-0796 (610) 692-9116


H:\WPDATA\TRANS\RDMN\MARY\EXCEPTNS.DOC

Pennsylvania-American Water Company

800 West Hershey Park Drive • P.O. Box 888 • Hershey, PA 17033-0888

(717) 533-5000 • FAX (717) 531-3213


January 28, 1999

VIA UPS OVERNIGHT DELIVERYJames J. McNulty, SecretaryPennsylvania Public Utility CommissionNorth Office Building, Room B-20North St. & Commonwealth Ave., P. O. Box 3265Harrisburg, Pennsylvania 17105-3265

V

JAN 2 8 1999

PA PUBLIC UTILITY COMMISSION-

P-'^.ETARY’S

Re: Investigation upon the Commission’s own Motion to determine the condition,disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T-439) above-the-grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County fAAR 361 417 SI at Docket No. 1-00970069

Enclosed for filing in the above-captioned proceeding are an original and nine (9)copies of the Reply Exceptions of Pennsylvania-American Water Company. A copy of the Reply Exceptions is being served on the Honorable Richard M. Lovenwirth, Administrative Law Judge, and one (1) copy is being served on each party of record, as evidenced by the enclosed Certificate of Service.

In accordance with 52 Pa. Code §1.11 (a)(2), attached to this letter is the UPSOvernight Delivery receipt. Please time stamp the extra copy of this letter and return it to me in the stamped self-addressed envelope enclosed for your convenience.


Respectfully,

Associate Corporate Counsel

Enclosure

c: The Honorable Richard M. LovenwirthParties of Record

Dedicated to Quality Water and Superior Service

An E.E.O. Employer M/F//H/V


INVESTIGATION UPON THE COMMISSION’S OWN MOTION TO DETERMINE THE CONDITION, DISPOSITION AND RESPONSIBILITY FOR MAINTENANCE OF THE EXISTING CROSSING STRUCTURE DOCKET NO. 1-00970069CARRYING MARY STREET (T-439) ABOVE- THE-GRADE OF THE TRACK OF THE READING, BLUE MOUNTAIN AND NORTHERN RAILROAD COMPANY IN FAIRVIEW TOWNSHIP, LUZERNE COUNTY (AAR 361 417 S).

REPLY EXCEPTIONSOF THE PENNSYLVANIA-AMERICAN WATER COMPANY


DOCKETEDFEB 021555

Pennsylvania-Amcrican Water Cot 800 West Hershey Park Drive P. O. Box 888Hershey, Pennsylvania 17033-088 (717)533-5000

Company

JAN 28 199S

P.’ PUBLIC UTILITY COMMISJ?SECRETARY'S

ItCEiVt

DATED: January 28, 1999

L INTRODUCTION

On December 30, 1998, the Recommended Decision of Administrative Law Judge Richard

M. Lovenwirth (ALJ) was issued in this proceeding. On January 19, 1999, the Fairview Township

(“Township”) and Reading, Blue Mountain & Northern Railroad Company (“RBMN”) filed

Exceptions.1 In these Reply Exceptions, Pennsylvania-American Water Company (“PAWC”)

responds to the Exceptions filed by the Township.

II. REPLY EXCEPTIONS

A. THE COMMISSION SHOULD NOT ALLOCATE A GREATER PORTION OFTHE COST AND EXPENSES ASSOCIATED WITH THE REMOVAL OF THE EXISTING MARY STREET BRIDGE AND THE CONSTRUCTION OF A NEW BRIDGE TO PAWC

The ALJ, in his Recommended Decision, determined that the fixed utilities in this proceeding,

PAWC and PG Energy, Inc. (“PGE”), should not bear any of the cost to construct a new bridge;

however, the utilities should be responsible for bearing all of the cost associated with relocating their

facilities in order to accommodate the construction project. (R. D., p. 61). Furthermore, the utilities

should bear all costs associated with the design and construction of supporting facilities to

accommodate the attachment of water and gas facilities to the new bridge. The Township, however,

excepts to the Recommended Decision because the ALJ, among other things, did not allocate to

PAWC and PGE, a greater portion of the cost and expenses associated with the removal of the

existing Mary Street Bridge and the construction of a new bridge. (Township Exc., p. 2). PAWC

submits that the ALJ, after reviewing the record, appropriately concluded that the Township is the

party responsible for the construction of a new bridge and highway approaches and bears 50 percent *

'By letter dated January 11, 1999, Pennsylvania-American Water Company informed the

Pennsylvania Public Utility Commission that it would not be filing Exceptions.

-2-

of the project cost. (R. D., pp. 44, 54). The ALJ’s conclusion was based upon unrebutted facts and

sound legal analysis.

The testimony and evidence presented at the hearing as well as the Main Briefs and Reply

Briefs that were subsequently filed make several facts clear in this proceeding. First, Mary Street is

a Township road and not a state or county road. (Tr.,p. 5; RBMN St. No. 1). Second, the bridge

was originally designed and constructed to accommodate railroad traffic. (Tr., p. 37; RBMN St. No.

1 and attached Exhibits). Furthermore, since its construction in the late 1800's, the Mary Street

bridge has been used for vehicular traffic until it was closed to vehicular traffic only in 1997. (Tr.,

pp. 37, 136-137). Lastly, prior to the closing of the bridge to vehicular traffic, Mary Street, and the

crossing that is the subject of this proceeding, provided access to the Solomon Gap section of the

Township for the Township residents, emergency agencies, school buses and businesses. (Tr., pp.

97, 160-161, 183,205, 207).

The Township’s own witnesses clearly demonstrated that the Township and its residents

would reap considerable and significant benefit from the construction of a new bridge. The Chairman

of Fairview Township Board of Supervisor testified that due to the closing of the Bridge there is only

one access to the Solomon Gap section. (Tr , pp. 96-97, 101). This access requires the crossing of

property which is owned by the Mountaintop Hose Company No. 1, and the Company, from time

to time, barricades the property that is used for access to the Solomon Gap section. (Tr., pp. 98-99,

128; Fairview Ex. No. 2). The Township readily admitted in its Main Brief that the current access

to the Solomon Gap section is “problematic” because the steep grade of Lehigh Street results in

vehicles that make left turns from Route 437 onto Lehigh Street “bottoming out.” (M. B., p. 5).

Additionally, the Chairman testified that due to the fact that there is only one access to the Solomon

Gap section, there is an increase in traffic congestion. (Tr., pp. 100-101).

-3-

Several other Township witnesses testified as to the inadequacies of the only existing access

to the Solomon Gap section and the need to have an alternative or additional access to this section

of the Township. The Township’s Chief of Police testified as to several public safety concerns,

including increased accidents, traffic congestion and slippery road conditions during the winter

months. (Tr.,pp. 180-185). Township witness Peter Kohl, the Fire Chieffor the Mountaintop Hose

Company No. 1, presented testimony as to the fire truck’s access problems. (Tr.,pp. 193-196). The

Mountaintop Area Community Ambulance witness also testified as to the access problems

experienced by ambulances since the closing of the Bridge. (Tr., pp. 212-213). The Director of the

T ransportation for the Crest wood School District, which includes the T ownship, presented testimony

regarding the public safety concerns for the children of the Solomon Gap section and the seven (7)

school buses that provide service to this section of the Township. (Tr., pp. 202, 205-207, 209).

It is clear, however, that the Township received substantial benefit during the time period that

the Bridge was opened. The bridge served as an essential part ofthe transportation infrastructure for

the Township’s Solomon Gap section. The businesses, schools, public safety entities, religious

institutions and the residences were dependent upon this alternative and additional access to Solomon

Gap section ofthe Township for the public safety, emergency and day to day needs. The construction

of a new bridge which would permit vehicular and pedestrian traffic would provide an alternative and

additional access route to the Solomon Gap section.

The Township would have the Commission believe that it is PAWC who has derived a greater

benefit from the existing bridge without paying for the use of the bridge. The facts of this case,

however, demonstrate that the Township received a substantial benefit from the existing bridge but

did not bear any of the cost of the construction or maintaining the bridge. The purpose and use of

the bridge have dramatically changed since it was constructed in the late 1800's and even since the

-4-

water facilities were installed in 1926. The construction of a new bridge that would replace the more

than 100 year old bridge will by its very nature benefit the Township. The evidence throughout this

proceeding more than adequately demonstrates that the Township has been at a disadvantage since

the closing of the bridge. Thus, it is only appropriate that the Township should bear at least 50

percent of the cost to construct a new bridge. Therefore, PAWC request the Commission deny the

Township’s Exceptions and adopt the ALJ’s Recommended Decision.

B. THE COMMISSION SHOULD NOT PROHIBIT PAWC FROM ATTACHING ITS FACILITIES TO THE NEW BRIDGE

The ALJ directed PAWC bear the cost of the design and construction of the necessary

supports for the water facilities to be attached to the new bridge. (R. D., p. 61). Additionally,

PAWC would be responsible for maintaining its facilities at the crossing. (R. D., p. 63). In its

Exceptions, the Township wants the Commission to prohibit PAWC from attaching its facilities to

any new bridge unless it negotiates a right of way agreement with the parties responsible for the

construction and future maintenance of the new bridge.

There is no dispute that PAWC maintains a 6-inch steel and cast-iron water main attached to

the bridge that is in a public right of way. PAWC is willing to maintain its facilities on the closed

Bridge. In the alternative, PAWC is willing to bear the cost of the relocation of its facilities in order

to accommodate a construction project that would result in the replacement of the bridge and the cost

to design and construct supports for water facilities on a new bridge. It would seem that the

Township’s alternative is an illustration of the Township’s “sour grapes.” Perhaps the Commission

should consider directing the Township to pay for its residents, schools, emergency agencies and

businesses prior use of the bridge which may provide sufficient monies for the construction of a new

bridge. PAWC respectfully requests the Commission deny the Township’s Exceptions.

-5-

III. CONCLUSION

«

The Commission must, in determining the allocation of the cost for the repair or replacement

of the Bridge, consider several factors including the relevant benefit parties will receive from the

repair or replacement of the Bridge. Greene Township v. Pa. P.U.C.. 668 A.2d 615 (Pa. Commw.

Ct. 1995). The Township advocated the replacement ofthe bridge in order to provide an alternative

and additional access route to the Solomon Gap section of the Township. The Township, however,

advocated this position at the expense of the other parties including PAWC. The ALJ concluded that

the existing bridge should be replaced, and he appropriately concluded that the Township should bear

50 percent of the cost of the construction of the new bridge Accordingly, the Township’s

Exceptions should be denied.

Respectfully submitted.

Susan D. SimmsPennsylvania-American Water Company 800 West Hershey Park Drive P. O. Box 888Hershey, Pennsylvania 17033-0888 (717)533-5000


-6-


Investigation upon the Commission’s own motion to determine the condition, disposition, and responsibility for maintenanceof the existing crossing structure carrying : Docket No. 1-00970069Mary Street (T-439) above the grade of thetrack of the Reading, Blue Mountain andNorthern Railroad Company in FairviewTownship, Luzerne County (AAR 361 417 S)


I hereby certify that I have this day served a true copy of the foregoing document upon

the participants, listed below, in accordance with the requirements of § 1.54:

VIA FIRST CLASS MAIL

H. James Brozcna County of Luzerne Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711-001

Eric M. Hocky, Esq.Gollatz, Griffin & Ewing, P C.213 W. Miner Stceet P. O. Box 796

West Chester, PA 19381-0796

David Salapa. Esquire Pennsylvania Public Utility Commission Transportation & Safety Rail Division North Office Building, P. O. Box 3265 North St., & Commonwealth Ave. Harrisburg, PA 17105-3265

Robert N. Gawlas, Jr., Esquire Roscnn, Jenkins, & Grccnwald 15 South Franklin Street Wilkes-Barre, PA 18711

Jeffrey H. Sunday, Esq.PG Energy Inc.Wilkes Barre Ctr., 39 Public Square Wilkes-Barre, PA 18711-0601

Benjamin C-Dunlap, Jr., Esq. Naumon, Smith, Shisslcr & Hall 200 North Third Street, 18lh Floor P.O. Box 840Harrisburg, PA 17108-0840

Jason D. Sharp, Assistant Counsel Department of Transportation Forum Place, 9th Floor 555 Walnut Street Harrisburg, PA 17101-3128

Certificate of Service

Page 2

VIA UPS OVERNIGHT DELIVERY

Honorable Richard M. Lovenwirth, Administrative Law Judge Pennsylvania Public Utility Commission Scranton State Office Building, Room 318 100 Lackawanna Avenue Scranton, PA 18503

Dated this 28th day of January, 1999

Susan D. Simms, Esq.Pennsylvania-American Water Company 800 West Hershey Park Drive, P.O. Box 888 Hershey, Pennsylvania 17033-0888 (717)533-5000

LAW OFFICES tRosenn Jenkins & Greenwald^Tl.p

15 Soutk Franklin Street Wilkes-Barre, Pennsylvania 18711-0075

EUGENE ROTH DANIEL G. FLANNERY MARSHALL S. JACOBSON MURRAY UFBERG BRUCE C. ROSENTHAL DONALD H. BROBST ANTHONY J. DIXON JOSEPH L. PEPSICO HOWARD M. LEVINSON ALAN S. HOLLANDER GARRY S. TAROLI RICHARD A. RUSSO JAMES P. VALENTINE MARK A. VAN LOON LEE S. PIATT ROBERT D. SCHAUB ROBERT N. GAWLAS, JR. STEVEN P. ROTH JAMES C. OSCHAL *t

JOSEPH G. FERGUSON GEORGE F. SHOVLIN tt MARY GRIFFIN CUMMINGS MARY JO KISHEL PATRICIA ERMEL LAKHIA » MARK W. DRASNIN LAWRENCE W. ROTH ELIZABETH C. LEO * NICHOLAS C. STROUMBAKIS MICHAEL K. DURICKO ERNEST A. SPOSTO. JR. THOMAS J. MacNEELY MICHAEL BRIECHLE

Of Counsel:

HAROLD ROSENN JOSEPH J. SAVTT2

Telephone 5 70-626-5600

Telecopier

570-a26-5e-40

Direct Dial 570-826-568 l

Direct Fax 570-83 I -72 I 5

Also admitted to practice in: • New York H Washington, D.C.J New Jerset tt Florida

Internet

WWW.NEPALAW.COM

E-Mail

[email protected]

Hazleton Office

l 20 East Broad Street West Hazleton, PA I 820 I

Telephone 570-455-7 I l 2

Telecopier

570-455-8304

January 28, 1999

Pennsylvania Public Utility Commission Prothonotary’s Office P.O. Box 3265 Harrisburg, PA 17105-3265

Re: In Re: Investigation - Fairview TownshipDocket No. 1-00970069

HECEIVEU

JAN 2 8 1999

PA PUBLIC UTILITY COMMISSlOf ‘ SECRETARY’S BURF f'1

To Whom it May Concern:

Enclosed for filing in the above matter are the original and nine (9) copies of Fairview Township’s Reply to Exceptions of Reading, Blue Mountain & Northern Railroad Company, with an attached Certificate of Service, as well as a United States Postal Service Form 3817 Certificate of Mailing, attached to the cover of the original Reply to Exceptions.

Also enclosed is an extra copy of Fairview Township’s Reply to Exceptions of Reading, Blue Mountain & Northern Railroad Company, which we would appreciate your time-stamping and returning to us in the stamped, self-addressed envelope enclosed for your convenience.

As indicated on the Certificate of Service, one (1) copy of Fairview Township’s Reply to Exceptions of Reading, Blue Mountain & Northern Railroad Company is being served on each party of record, as well as the Honorable Richard M. Lovenwirth, Administrative Law Judge.

Rosenn, Jenkins & Greenwald, l.l.p.

Pennsylvania Public Utility Commission January 28, 1999 Page 2

Thank you for your attention to this matter. If you should have any questions, of course, please don’t hesitate to call at your convenience.

Sincerely,

ROBERT N. GAWLAS, JR.

RNG/IaoEnclosures

cc: Honorable Richard M. Lovenwirth, Administrative Law Judge (w/enclosures)David Salapa, Esquire (w/enclosures)Susan Simms, Esquire (w/enclosures)Jason D. Sharp, Esquire (w/enclosures)Eric M. Hocky, Esquire (w/enclosures)Benjamin C. Dunlap, Jr., Esquire (w/enclosures)Jeffrey H. Sunday, Esquire (w/enclosures)H. James Brozena (w/enclosures)

211822.1


BEFORE THE


Investigation Upon the Commission’s Own Motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T439) above-the-grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR 361 417 S).

FAIRVIEW TOWNSHIP’S REPLY TO EXCEPTIONS OF READING. BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY

DOCKETEDFEB 01 1999


BY:_ IZum. 6L6*

ROBERT N. GAWLAS, M., ESQUIRE Attorney LD. No. 46608 15 South Franklin Street Wilkes-Barre, PA 18711 (717) 826-5600

Docket Number

1-00970069

HECEiVED

JAN 2 8 1999

PA PUBLIC UTILITY COMMISSK* SECRETARY’S BUPEA'1

Dated: January ZL 1999


FAIRVIEW TOWNSHIP’S REPLY TO EXCEPTIONS OF READING. BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY

FAIRVIEW TOWNSHIP, through its attorneys, Rosenn, Jenkins & Greenwald, L.L.P., files

the following Reply to the Exceptions of READING, BLUE MOUNTAIN & NORTHERN

RAILROAD COMPANY (“RBM&N”) to the Recommended Decision of the Honorable Richard

M. Lovenwirth, Administrative Law Judge, which was issued on December 30, 1998.

1. Reply to Exception to Proposed Finding of Fact No. 11

RBM&N contends that Finding of Fact No. 11 is incomplete and, because of the existence

of a rock “gap”, should be amended to provide that “[N]o at-grade crossing is possible at this

location.”

This Exception is without merit. The rock “gap” referenced is actually an excavation through

the rock to accommodate the railroad tracks. (N.T. 164). Further, as the testimony presented at the

hearing made abundantly clear, there had been, in the past, and continues to be an at-grade crossing

at the lower end of Lehigh Street, which is paved on both sides ofthe railroad tracks. (N.T. 94-96).

However, the Lehigh Street at-grade crossing was closed years ago. (N.T. 111). See also Initial

Brief of Fairview Township, Proposed Findings of Fact 12 and 17, which are incorporated by

reference and citation. Therefore, it would be inappropriate to amend Proposed Finding of Fact No.

11 to provide that no at-grade crossing would be possible in this area.

2. Reply to Exception to Proposed Conclusion of Law No. 18. Proposed Order No. 21

RBM&N’s Exception to Proposed Conclusion of Law No. 18 and Proposed Order No. 21,

on the purported basis that RBM&N would derive no benefit from the replacement of the bridge, is

211623.1 2

likewise without merit and contradicted by the evidence of record. On the contrary, as discussed

in the Exceptions of Fairview Township, which are incorporated by reference, a greater allocation

should have been assigned to RBM&N by the Recommended Decision because it and its

predecessors-in-title have enjoyed, and RBM&N will continue to enjoy, the benefits ofthe separated-

grade crossing. (See Exceptions of Fairview Township, pages 2 through 7.) By way of further reply,

see Reply to Exception No. 1 above.

3. Reply to Exception to Proposed Order No. 21

RBM&N’s Exception to Proposed Order No. 21 contends that, if federal or state funds

become available, they should supersede the allocations set forth in the Recommended Decision’s

Proposed Order, with no allocation to RBM&N.

This Exception ignores the portions of the Recommended Decision which provide that

federal funds will not be used for the recommended project. (See, e.g.. Proposed Conclusion of Law

No. 11, Page 65; Page 47). Likewise, it ignores those portions of the Recommended Decision which

conclude, in accordance with the record, that no Bridge Bill funds are available for the project at this

time. (See, e.g.. Proposed Finding of Fact Nos. 27 through 30, Pages 12-13; Page 47).

In any event, at Page 47 of the Recommended Decision and in the context of restrictions

place upon federal and/or Bridge Bill funds, ALJ Lovenwirth states:

“Therefore, I will recommend that my cost allocations will be without prejudice to the parties’ rights to recover their cost in accordance with any lawful agreement.”

Proposed Order No. 29 provides for the same.

211623 ! 3

By way of further reply, see Page 11 of Exceptions of Fairview Township, which are

incorporated by reference.

CONCLUSION

For all of the reasons stated above, as well as in the Exceptions of Fairview Township,

FAIRVIEW TOWNSHIP respectfully requests that the Commission reject the Exceptions of

Reading, Blue Mountain & Northern Railroad Company and, instead, grant the relief requested by

the Exceptions of Fairview Township.


BY: _______________ROBERT N. GAWLAS, JR? ESQUIRE

Attorney I.D. No. 46608 15 South Franklin Street Wilkes-Barre, PA 18711 (570) 826-5600


211623.1 4


BEFORE THE


Investigation upon the Commission’s Own Motion :To Determine the Condition, Disposition, and Responsibility for Maintenance of the ExistingCrossing Structure Carrying Mary Street (T-439) Docket NumberAbove the Grade of the Tracks of the Reading, Blue : 1-00970069Mountain and Northern Railroad Company in Fairview Township, Luzerne County :(AAR 361 417 S)


The undersigned certifies that on January af. 1999, he filed the original and nine (9) copies of

Fairview Township’s Reply to Exceptions of Reading, Blue Mountain & Northern Railroad Company, by

First Class U.S. Mail addressed to:

Commonwealth of Pennsylvania Pennsylvania Public Utility Commission

Prothonotary’s Office P.O. Box 3265


The undersigned certifies that on January PL , 1999, he served one (1) copy of the Fairview

Township’s Reply to Exceptions of Reading, Blue Mountain & Northern Railroad Company upon each the

following by First Class U.S. Mail:

The Honorable Richard M. Lovenwirth Administrative Law Judge

Room 317, State Office Building 100 Lackawanna Avenue

Scranton, PA 18503

David Salapa, Esquire Pennsylvania Public Utility Commission

Bureau of Transportation and Safety P.O. Box 3265

Harrisburg, PA 17105

- AND-

211623.1

Susan Simms, Esquire Pennsylvania-American Water Company

800 West Hershey Park Drive P.O. Box 888

Hershey, PA 17033-0888

Jason D. Sharp, Esquire Commonwealth of Pennsylvania

Department of Transportation Forum Place - Ninth Floor

555 Walnut Street Harrisburg, PA 17101-1900

Jeffery H. Sunday, Esquire PG Energy, Inc.One PEI Center


Eric M. Hocky, Esquire 213 West Miner Street

P.O. Box 796WestChester, PA 19381-0796

Benjamin C. Dunlap, Jr., Esquire Nauman, Smith, Shissler & Hall

18th Floor, 200 North Third Street P.O. Box 840


H. James Brozena County of Luzerne

Luzerne County Courthouse 200 North River Street



BY: ____________ROBERT N. GAWLAS, JR.#SQUIRE Attorney I.D. No. 46608 15 South Franklin Street Wilkes-Barre, PA 18711 (717) 826-5600


211623.1 2

OS-2 (4-95) fOMMONWEALTH OF PENNSYLVANIA

DEPARTMENT OF TRANSPORTATION

Office of Chief Counsel Forum Place

555 Walnut Street - 9th Floor Harrisburg, Pennsylvania 17101-1900

Telephone No. (717) 787-3128 Fax No. (717) 772-2741

January 29, 1999

James McNulty, Secretary Pennsylvania Public Utility Commission P.O. Box 3265 Harrisburg, PA 17105-3265

(.nOr'

, Q;-3

V.O

-7Jr'

c:

In Re: Docket No. 1-00970069


Enclosed for filing please find the original and nine (9) copies of the Reply Exceptions of the Department of Transportation in the above-captioned matter. 1

1 hereby certify that the parties indicated on the Certificate of Service have been served with two (2) copies of said Exceptions.

Very Truly Yours,

EEF

220/JDS :jds

cc: Honorable Richard LovenwirthAll Parties of RecordWilliam D. Pickering, P.E. (Attn: Fred Daniels) District 4-0 (Attn: Joe Strok)

FOLDER

BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION

In Re: Investigation upon the Commission'sown Motion to determine the condition, Docket Numberdisposition, and responsibility for :maintenance of the existing crossing structure 1-00970069carrying Mary Street (T-439) above the grade :of the track of the Reading, Blue Mountain :and Northern Railroad Company in Fairview :Township, Luzerne County (AAR 361 417 S). :

REPLY EXCEPTIONS OF THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION

Jason D. Sharp Assistant Counsel

Gina M. D’Alfonso Assistant Counsel in Charge

William J. Cressler Assistant Chief Counsel

DOCKETEDFEB 01 1999

Commonwealth of Pennsylvania Department of Transportation Office of Chief Counsel - Th Floor JForum Place, 555 Walnut Street Harrisburg, Pennsylvania 17101-1900 Telephone No. (717) 787-3128

AND NOW, comes the Commonwealth of Pennsylvania, Department of Transportation

("Department"), by and through its counsel, Jason D. Sharp, and submits the following replies to

Exceptions to the Recommended Decision of Administrative Law Judge Richard M. Lovenwirth,

dated December 7, 1998, issued, December 30, 1998, filed by the Reading Blue Mountain and

Northern Railroad Company (“RBMN”) and Fairview Township (“Township”):

L REPLY TO THE EXCEPTIONS OF READING BLUE MOUNTAIN AND NORTHERN RAILROAD COMPANY.

The Department responds to RBMN’s Exception No. 3, which requests that the Public

Utility Commission (“Commission”) modify Ordering Paragraph No. 21 to "acknowledge that if

state or federal funds become available, that the requirements of such funding will supersede the

cost allocations set forth in the order.”

Administrative Law Judge Lovenwirth (“ALJ”) took adequate steps to address the

possibility of Federal or State funding becoming available for the project. The ALJ stated that

the "cost allocation would be without prejudice to the parties right to recover their cost in

accordance with any lawful agreement." (Recommended Decision at 47). The ALJ reiterated that

language in Ordering Paragraph No. 29. (Recommended Decision at 75). The Recommend

Decision already recognizes, and adequately addresses, that fact the use of Federal or State

funding for this project may have an impact on the recommendation that RBMN bear 40% of the

overall project costs.1

1 The Department recognizes that 23 C.F.R. § 646.210 (b) (2) would relieve RBMN of bearing costs associated with the project, unless RBMN agreed to assume certain costs, (cont.)

2

The ALJ correctly crafted the Ordering Paragraphs, properly addressing the current

situation, where no State or Federal funding is available. The appropriate vehicle to address any

change in status of available funding for bridge reconstruction would be to petition the

Commission to modify an order entered in this case.

IL REPLY TO THE EXCEPTIONS OF FAIRVIEW TOWNSHIP.

The Department replies to Township Exceptions 1 [c], 1 [d] and 2, as pertaining to the

Department. The Department incorporates by reference the following: Department’s Main Brief,

Argument Section I. A.; Department’s Reply Brief (all sections).

A. Township Exception l[c].

The Department responds to Township Exception No. l[c], which suggests that the

Department should have received an allocation of costs for replacement of the Mary Street

Bridge. In support of its contention, the Township references portions from both its Main and

Reply briefs. However, the majority of the referenced passages deal with the access and the

convenience that a reconstructed Mary Street Bridge would provide for the Township.

The Township’s Exceptions do not address the main thrust of the ALJ’s reasoning behind

his recommended allocations. Specifically, the ALJ explained that the traffic flow entering and

leaving the Solomon’s Gap area is "very local in nature." (Recommended Decision at 51).

Additionally, the ALJ clearly distinguishes the cases cited by the Township in support of an

allocation of costs to the Department. (Recommended Decision at 51; Department Reply Brief,

However, if State funding is used, there is no prohibition against the Commission assigning a rail carrier a share of the costs.

3

Argument Section I.).

While the Commission may, under the appropriate circumstances, allocate costs to the

Department for crossings where a local road is involved, the ALJ clearly recognized that this was

not the case:

"The Township cites several court cases in support of its position, see Township Main Brief p. 36-39. I disagree with the Township on the applicability of those cases to the instant case. The area of the Township involved is small in area and only involves 39 homes. There was no thorough traffic2 on Mary Street and it was never part of the State highway system. The circumstances in this case are different from the cases cited by the Township."

(Recommended Decision at 51) (footnote added).

No evidence of record proves or even suggests that the proximity of SR 0309 and SR 0437

creates any increase in traffic volume at the Mary Street crossing, and for that matter, the entire

Solomon’s Gap area. No origin or destination study was conducted at the crossing while it was

open, nor was any study completed at the Lehigh Street intersection.

Clearly, the Department should not be forced to contribute to the cost for construction of

a crossing on a record that is devoid of any ascertainable or quantifable benefit to the State

highway system.

B. Township Exception l[d|.

The Department responds to Township Exception No. 1 [d], which suggests that the

Department should be required to bear a share of the costs for design and construction of the new

Mary Street Bridge. The Township requests that it be reimbursed “on a going forward basis” for

2 The Solomon’s Gap section of the Township is a dead end. (N.T. 95, 114, 115, 118, Township Exhibit la). This fact supports the ALJ’s conclusion that there is no through traffic on

Mary Street.

4

costs incurred in design and construction. Insofar as the this Exception is predicated on a finding

that the Department should bear any costs associated with the bridge, the Department refers the

Commission to its response to Township Exception l[c], above.

C. Township Exception 2.

The Department responds to Township Exception No. 2, which suggests that the

Department should be required to share a portion of the costs for future maintenance of the new

Mary Street Bridge. Insofar as the this Exception is predicated on a finding that the Department

should bear any costs associated with the bridge, the Department refers the Commission to its

response to Township Exception 1 [c], above.

5

CONCLUSION

For the reasons cited above, the Exceptions of the Reading Blue Mountain and Northern

Railroad Company and Fairview Township, as pertaining to the Commonwealth of Pennsylvania,

Department of Transportation, should be denied and an Order consistent with the Recommended

Decision of ALJ Richard M. Lovenwirth, Issued December 30, 1998, should be entered by this

Honorable Commission.

Respectfully Submitted,

PA Attorney Id. # 80488 Commonwealth of Pennsylvania Department of Transportation Office of Chief Counsel-9th Floor Forum Place, 555 Walnut Street Harrisburg, PA 17101-1900 Telephone No. (717) 787-3128

Dated: January 29. 1999

corno^3l 1

<s>-CD-cr

70m CD

Cf'

6

BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION

In Re: Investigation upon the Commission's own Motion to determine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T-439) above the grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR 361 417 S).

Docket Number

1-00970069


I hereby certify that a true and correct copy of the Department of Transportation’s Main Brief was served upon the parties listed below by first class mail, postage prepaid, this 29th day ofJanuary, 1999:

Benjamin C. Dunlap, Jr., Esquire Nauman, Smith. Shissler & Hall I 8th Floor

200 North Third Street P.O. Box 840Harrisburg, PA I 7 I 08-0840

David A. Salapa, Esquire

Pa PUC Trans & Safety Rail Division

P.O. Box 3265Harrisburg, PA I 7 105-3265

Robert N. Gawlas, Jr., Esquire Rosenn, Jenkins & Greenwald, L.L.P.

I 5 South Frankun Street Wilkes-Barre, PA 187 1 1-0075

Jeffrey H. Sunday, Esquire PG Energy Inc.Wilkes Barre Center, 39 Public Square Wilkes-Barre, PA I 87 I I -060 I

Susan D. Simms, Esquire

Pennsylvania - American Water Company

800 West Hershey Park Drive

P.O. Box 888Hershey, PA I 7033-0888

Eric M. Hockey, Esquire Gollatz, Griffin & Ewing, P.C.

2 I 3 West Miner Street P.O. Box 796

Chester, PA I 938 I -0796

James Brozena County of Luzerne

Luzerne County Courthouse South River Street Wilkes-Barre, PA I 87 I I

Commonwealth of Pennsylvania Department of Transportation Office of Chief Counsel-9th Floor Forum Place, 555 Walnut Street Harrisburg, PA 17101-1900 Telephone No. (717) 787-3128

Dated: January 29. 1999

comoTOrn

r-o'.jD

m cpUM>

c

i

43

PHILADELPHIA OFFICE: SIXTEENTH FLOOR

TWO PENN CENTER PLAZA PHILADELPHIA, PA 19102

(215) 563-9400

Gollatz, Griffin & Ewing, p.c.ATTORNEYS AT LAW

213 WEST MINER STREET POST OFFICE BOX 796

WEST CHESTER, PA 19381-0796

Telephone (610) 692-9116 Telecopier (610) 692-9177

E-MAIL: [email protected]

DELAWARE COUNTY OFFICE: 205 NORTH MONROE STREET

POST OFFICE BOX 1430 MEDIA, PA 19063

(610)565-6040

ERIC M. HOCKY

DOCUMENT

ERJanuary 29, 1999 'iC-UbiVt

FedExJames J. McNulty, Secretary Pennsylvania Public Utility Commission North Office Building, Room B-20 North Street and Commonwealth Avenue

P.O. Box 3265Harrisburg, PA 17105-3265

JAN 29 1999

r. 1JBUC UTILITY COMMISS-* N :-^qctary’S BiJRr

Re: Investigation upon the Commission's own motion todetermine the condition, disposition, andresponsibility for maintenance of the existingcrossing structure carrying Mary Street (T-439)above the grade of the track of the Reading, BlueMountain and Nortli^-m^Radlroad Company in FairviewTownship, Luzerne County)(AAR 361 417 S).

Docket No. /I--00970069 //

Reply of Reading Blue-Mountain & Northern Railroad Company to ExGephl'dns of Fairview Township


Enclosed for filing in the above-captioned proceeding are an original and nine (9) copies of the Reply of Reading Blue Mountain & Northern Railroad Company to Exceptions of Fairview Township. In accordance with 52 Pa. Code §1.11(a)(2), attached to this letter is the FedEx "receipt." Copies of the Reply have


James J. McNulty, Secretary

January 29, 1999 Page 2

been served on the parties of record as stated on the Certificate of Service attached to the Reply.

Kindly time stamp the extra copy of this letter to indicate receipt and return it to me in the stamped self-addressed envelope provided for your convenience.

Respectfully,

Enclosures

cc: (w/encl.)

The Honorable Richard M. Lovenwirth, ALJ Parties of Record

EMH'bahH:\WPDATA\TRANS\RBMN\MARY\PUC06.WPD

Before the


Investigation upon the Commission’s )own motion to determine the condition, ) disposition, and responsibility for )maintenance of the existing crossing )structure carrying Mary Street (T439) )above the grade of the track of the )Reading, Blue Mountain and Northern )Railroad Company in Fairview Township, ) Luzerne County (AAR 361 417 S) )

Docket No. 1-00970069

u:ULiV t,.

JAN 2 9

F ’ UBL1C UTILITY COMMIS

REPLY OFREADING BLUE MOUNTAIN & NORTHERN

TO EXCEPTIONS OF FAIRVIEWRAILROAD COMPANY TOWNSHIP

Eric M. HockyGOLLATZ, GRIFFIN & EWING, P.C. 213 West Miner Street P.O. Box 796West Chester, PA 19381-0796 (610) 692-9116



REPLY OFREADING BLUE MOUNTAIN & NORTHERN RAILROAD COMPANY

TO EXCEPTIONS OF FAIRVIEW TOWNSHIP

In a Recommended Decision dated December 7, 1998 (issued by the Commission on

December 30, 1998 (the “Recommended Decision”), Administrative Law Judge Richard M.

Lovenwirth (the “ALJ”) recommended that the Mary Street Bridge (the “Bridge”) be removed and

replaced. The Recommended Decision proposed allocation of the costs among certain parties to the

proceeding. Reading Blue Mountain & Northern Railroad Company (“RBMN”) and Fairview

Township (the “Township”) filed exceptions to the Recommended Decision.

Pursuant to 52 Pa. Code §5.535, RBMN hereby replies to the exceptions raised by

Fairview Township:

Township Exception No. 1(a).

In Township Exception No. 1, the Township complains about the allocation of costs

proposed by the Recommended Decision. RBMN disagrees with this exception, in particular as it

relates to the Township’s suggestion in §l(a) of its Exceptions (Township’s Exceptions at 2-7) that

RBMN bear a greater percentage of the costs than suggested in the Recommended Decision.1

In allocating costs, there is no fixed rule and the Commission takes all relevant factors

into consideration. Recommended Decision at 30, citing East Rockhill Township v. Pf/C, 540 A.2d

600 (Pa. Cmwlth. 1998). Although ALJ Lovenwirth set forth a number of factors that he considered,

1 As noted in RBMN’s Exceptions, RBMN takes the position that the allocation to RBMN should, in fact, be reduced or eliminated.

H:\WPDATA\TRANS\RBMN\MARY\REPLY-EX.DOC

the Township focuses on only two — ownership of the Bridge and the effect of past orders — in

arguing that a greater portion of the cost should be allocated to RBMN.

There is no evidence in the record that RBMN is the owner of the Bridge. While

there is some evidence that Central Railroad of New Jersey (“CNJ”) built the Bridge in 1894, there

is no evidence that CNJ ever owned the Bridge. Even if CNJ originally owned the Bridge, there is

no evidence that ownership of the Bridge was ever transferred to Conrail.2 The quit claim deed from

Conrail to RBMN makes clear that RBMN only obtained title to whatever Conrail owned. See

Township Exhibit No. 24. Since Conrail did not have title to the Bridge, it could not have passed

title to RBMN.

It is acknowledged that RBMN owns the tracks passing beneath the Bridge. The

original circumstances surrounding construction of the Bridge, however, are unknown. It is not

known if the rail lines pre-dated the Bridge, or what benefits, if any, CNJ received at the time the

Bridge was built. However, it is clear that neither the presence of the rail lines nor the actions of any

of the railroads have caused the Bridge to need replacement. Rather, the Bridge has outlived its

useful life. Further, the new bridge will be a great improvement over the original bridge (two lanes,

increased to new maximum weight limits) to accommodate the increased demands placed by the

travelling public and by the newer, larger emergency vehicles and school buses that will use the

Bridge. Recommended Decision at 29, 41, 52. For these reasons, and the changed circumstances

2 As the Recommended Decision notes at page 24, Conrail disputes taking title to overhead bridges. See also Rush Township v. Panther Valley Railroad, 76 PUC 140 (1996) (holding that bridge constructed by CNJ was not conveyed to Conrail and that it was an “orphan bridge”).

H:\WPDATA\TRANS\RBMN\MARY\REPLY-EX.DOC2

described more fully below, RBMN’s mere ownership of the tracks does not justify an increase in

the already substantial allocation proposed for RBMN.

The Recommended Decision correctly notes that prior orders are only one factor to

be considered. Recommended Decision at 32-33. However, prior orders are not of precedental

value, and the ALJ properly considered changed circumstances. Recommended Decision at 32-33;

RBMN Initial Brief at 15-16. In this case, railroads built and maintained the overhead crossing for

over 100 years, clearly satisfying any benefit that CNJ may have obtained originally. (There is no

evidence as to the circumstances surrounding the original construction of the Bridge.) The ALJ

found that the replacement of the Bridge is necessitated by the Bridge having outlived its useful life

and not from any failure to comply with Commission orders. Recommended Decision at 40-41,50.3

Further, as the ALJ noted, RBMN is a smaller carrier, with less traffic than the previous railroads

at the crossing, and RBMN will not receive the same benefits from the reconstructed crossing as the

Township (and County) residents will. Recommended Decision at 53-54. See also RBMN Reply

Brief at 6-7. Accordingly, the departure from prior orders was clearly explained and is “just and

reasonable.”

Although, as discussed, none of the factors mentioned by the Township justify any

increase in the allocation to RBMN, it should also be noted that the Township has ignored the

primary factor to be considered - who will reap the most benefits from the new bridge. Pittsburgh

and Lake Erie Railroad Company v. PUC, 556 A.2d 944, 946 (Pa. Cmwlth. 1989). As noted in the

3 In the quit claim deed, RBMN agreed to assume certain responsibilities of Conrail with respect to overhead bridges; however, the ALJ found in this case that Conrail did not violate its obligations as to the Bridge. Recommended Decision at 50.


Recommended Decision, federal regulations acknowledge that a railroad does not obtain any benefit

from the reconstruction of a crossing. Recommended Decision at 48, citing 23 CFR §646.210(b)(2).

Since RBMN will not benefit from a reconstructed bridge, and since the residents of the Township

(and County) will, no additional allocation to RBMN is justified. See RBMN Exceptions at 1-2;

RBMN Initial Brief at 9-10.4

Township Exception No. 1(d).

RBMN also sees no reason to change the portion of the Recommended Decision that

provides for the Township to complete the removal and construction at its initial cost and expense.

As noted in the Recommended Decision, the Township’s claim that funds are not available to it

should not be considered, since the Township as a tax levying entity has the ability to raise such

funds. See Recommended Decision at 53, 66-67, citing East Rockhill Township, supra. Further, the

Township can continue to make application to the County for Bridge Bill funds. See Recommended

Decision at 47.

Township Exception No. 2.

The Recommended Decision proposes that the Township maintain the substructure

and superstructure of the new bridge. This assignment of future maintenance is reasonable in light

of the benefits that the Township and its residents will receive from the reconstructed bridge, and

4 In its Exceptions, RBMN contends that the allocation to it should be reduced.


the lack of benefits that RBMN will receive. See discussion above at 3-4. The assignment to the

Township is consistent with requirements of federal and Bridge Bill funding. Recommended

Decision at 47-48. Whether or not federal or Bridge Bill funding is available for the reconstruction,

the same reasoning—that the party receiving the primary benefit should maintain the new bridge—

continues to apply. This is consistent with prior decisions of the Commission. See, e.g., Department

of Transportation v. PUC, 469 A.2d 1149, 1154 (Pa. Cmwlth. 1983) (assessment for future

maintenance just and reasonable where local governments will derive future benefits from

reconstruction). See also Bureau Main Brief at 13-14.


In Exception No. 3, Fairview Township seeks additional time to remove the Bridge

and to design and construct a new bridge. Since the new bridge is for the benefit of the Township,

RBMN is agreeable to any time period that the Township believes is necessary to complete the

process.5


In its Exception No. 4, the Township contends that it has already effectively closed

the Bridge to all traffic by installing metal guide rails across both ends of the Bridge. RBMN agrees

that this eliminates the need for Proposed Order Nos. 3-5.

5 Additional time may also make it easier for the Township to obtain Bridge Bill funding.


Conclusion

For the reasons set forth above, RBMN requests that Township Exceptions 1 (a), 1 (d)

and 2 be denied, and that Township Exceptions 3 and 4 be granted.

Respectfully submitted,

/MERIC M. ROCKYGOLLATZ/CRIFFIN & EWING, P.C.

213 West Miner Street P.O. Box 796West Chester, PA 19381-0796 (610) 692-9116

Attorneys for Reading Blue Mountain &Northern Railroad Company

Dated: January 29,1999



I hereby certify that I have this day served a true copy of the foregoing document by

first class mail, postage prepaid, upon the participants listed below, in accordance with the

requirements of §1.54 (relating to service by a participant):

David Salapa, Esq.Pennsylvania Public Utility Commission Bureau of Transportation and Safety North Office Building Commonwealth Avenue and North Harrisburg, PA 17105

Jeffery H. Sunday, Esq.PG Energy Inc.One PEI Center Wilkes-Barre, PA 18711

H. James Brozena County of Luzerne Luzerne County Courthouse 200 North River Street Wilkes-Barre, PA 18711-1001

Jason D. Sharp, Esq.Assistant Counsel Department of Transportation Forum Place - 9th Floor 555 Walnut Street Harrisburg, PA 17101-1900

Susan D. Simms, Esq.Associate Corporate Counsel Pennsylvania-American Water Co.800 West Hershey Park Drive Hershey, PA 17033-0888


Robert N. Gawlas, Jr., Esq.Rosenn, Jenkins & Greenwald 15 South Franklin Street Wilkes-Barre, PA 18711

Benjamin C. Dunlap, Jr., Esq.Nauman, Smith, Shissler & Hall 200 North Third Street, 18th FI.Harrisburg, PA 17108-0840

and one true copy of the foregoing document by first class mail, postage prepaid, upon:

Administrative Law Judge Richard M. Lovenwirth Room 317 State Office Building 100 Lackawanna Avenue Scranton, PA 18503

Dated this 29th day of January , 1999.

___________ ! f 11 f '

ERIC M^HOCKY

GOLLATZ, GRIFF: & EWING, P.C.213 West Miner StreetP.O. Box 796West Chester, PA 19381-0796 (610) 692-9116



DATE: February 3,1999

SUBJECT: 1-00970069

TO: Chery W. Davis, DiectorOffice of Special Assistants

FROM: James McNulty Secretary

i ) u s m mZSL

Investigation upon the Commission’s own motion to detennine the condition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (1*439) above the grade of the track of the Reading,

Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR 361 417S)

Copies of the Recommended Decision have been served upon all parties of interest.

Exceptions have been filed by:

READING, BLUE MOUNTIAN & NORTHERN RAILROAD FAIRVIEW TOWNSHIP

Reply Exceptions have been received from:

PENNDOTREADING BLUE MOUNTAIN/NORTHERN RAILROAD PA-AMERICAN WATER COMPANY FAIRVIEW TOWNSHIP

cc: Annette Shelley

Documents

Pennsylvania-American Water Company · Pursuant to your December 30, 1998 letter enclosing the Recommended Decision of Administrative Law Judge Richard M. Lovenwirth in the above-captioned