PENNSYLVANIA
PUBLIC UTILITY COMMISSION
Harrisburg, PA 17105-3265
Public Meeting held July 13, 2001
Commissioners Present:
Glen R. Thomas, Chairman
Robert K. Bloom, Vice Chairman
Aaron Wilson, Jr.
Terrance J. Fitzpatrick
Carol Ann Shoemaker C-00992984
v.
CSX Transportation, Inc., West Newton
Borough, Westmoreland County, and
Pennsylvania Department of Transportation
OPINION AND ORDER
BY THE COMMISSION:
Before the Commission for consideration and disposition are the Exceptions filed on March26, 2001, by the Borough of West Newton (Borough) to the Recommended Decision of Administrative Law Judge (ALJ) MichaelA. Nemec, issued March6, 2001, relative to the above-captioned proceeding.[1] Reply Exceptions were filed by CSX Transportation (CSX) and by the Pennsylvania Department of Transportation (PennDOT) on April12, 2001.
History of Proceeding
On November 4, 1999, Carol Ann Shoemaker filed the above captioned Complaint, concerning the safety of the traveling public at two at-grade crossings in the Borough of West Newton, Westmoreland County. Ms. Shoemaker, a school bus driver for Laidlaw Transit, complained of the inability to see whether any trains are operating on the tracks when stopped at the designated stopping point at each crossing. The Rail Safety Division held a site conference and conducted a field investigation on January13, 2000. The initial hearing on the Complaint was held on November2, 2000. Subsequent to hearing and review of the record, the ALJ issued a Recommended Decision:
Discussion
The instant proceeding involves the Borough’s Exceptions to the February16, 2001 Recommended Decision of ALJ Nemec. Specifically, the Borough excepts to the second ordering paragraph directing it to pay for the installation of a steel post at the Main Street crossing. We believe that it will be instructive to quote verbatim the ALJ’s Ordering Paragraph No.2 which states that:
2.The Borough of West Newton, which is a concerned municipal corporation, is directed, at its sole expense, to install a four inch steel post, or other suitable barrier, in the sidewalk adjacent to the Main Street crossing in a manner to preclude the use of the sidewalk by a motor vehicle to circumvent the gates at the Main Street crossing of the CSX Transportation, Inc., tracks in the Borough, as demonstrated in the record of this case. Such installation is to be completed within ninety(90) days after the entry of the final order in this matter.
We note that any issue or Exception, which we do not specifically address herein, has been duly considered and will be denied without further discussion. It is well settled that we are not required to consider expressly or at length each contention or argument raised by the parties. (Consolidated Rail Corporation v. Pennsylvania Public Utility Commission, 625 A.2d 741 (Pa. Cmwlth. 1993); also see, generally, University of Pennsylvaniav. Pennsylvania Public Utility Commission, 485 A.2d 1217 (Pa. Cmwlth. 1984)).
Section 2702(c) of the Public Utility Code (Code), asamended, 66Pa. C.S. §2702(c) grants the Commission exclusive power after hearing, to order that any “crossing” be relocated or altered.[2] Section 2702(c) further provides that the Commission may order any public utility or any concerned municipal corporation to perform the alteration work in whole or in part. Section 2702(f) of the Code, 66 Pa. C.S. §2702(f), provides that upon finding by the Commission that a crossing constitutes an immediate danger to the safety and welfare of the public, the Commission shall immediately order that the crossing be altered, improved, or suspended.
In its Exceptions the Borough proffers the following arguments: (1)that the ALJ’s decision was not based upon adequate evidence; (2)that the Borough was not afforded an opportunity to present evidence relative to this problem; (3)that an isolated set of tracks of a person illegally crossing does not establish a danger which requires that a post be placed in the sidewalk; (4)that such a barrier would constitute a danger to pedestrians; and (5)that when the crossing guard is down, the counter balance is of such a length that it would most probably preclude anyone from illegally crossing. (Borough Exc., ¶¶5-8)
In its Reply Exceptions, CSX rejoins that the Borough’s argument regarding the length of the counter balance of the crossing guard is illogical because a vehicle would not use the sidewalk to circumvent the crossing guard unless the gates were down. (CSX Reply Exc., pp.1-2). PennDOT in turn counters that the Borough's Exception No.6 regarding danger to pedestrians, and Exception No.7 regarding the length of the crossing guard’s counter balance constitutes new matter, and, therefore, should not be entertained by the Commission. (PennDOT Reply Exc., ¶4).[3]
We note that Finding of Fact No. 9 is relevant to our discussion of this issue and, therefore, we shall reproduce this Finding of Fact below:
9.State Route 136 crosses over the tracks of CSXT at the Main Street crossing in the Borough of West Newton. The Pennsylvania Department of Transportation presented detailed surveys of both the Main Street and the Water Street crossings. It also presented a number of photographs. One of the Photographs, Pa. Dept. of Transportation Exhibit 7, clearly shows the tracks of a vehicle using a sidewalk to gain access to the Main Street crossing and to avoid the gates at the crossing. The Department recommended the installation of a steel pole in the sidewalk to eliminate the use of the sidewalk to avoid the crossing gates at the Main Street crossing. The Department declined to accept responsibility for installation of the pole, and suggested that the Borough of West Newton was the appropriate responsible entity. Tr. 72-81; Pa. Dept. of Transportation Exhibits1-7.
We will first address the Borough’s assertion in Exception No.6 that the installation of a post in the sidewalk on Main Street in the Borough of West Newton would constitute a danger to the pedestrians who use the sidewalk. Thorough review of the record including PennDOT Exhibit No.7, a photograph of the Main Street crossing, shows three such vertical steel post in various locations at the intersection. We note from the testimony of Glenn Fullem, PennDOT’s Senior Highway Designer, that in order to block vehicle access to the sidewalk, a steel post must be installed in the sidewalk, in a location sensitive to pedestrians with disabilities. (Tr.,11/2/00, p.79). The Borough failed to refute or rebut the evidence presented that the installation of a post in the sidewalk would not pose any sort of danger to pedestrians. We, therefore, deny Exception No.6.
The Borough likewise failed to present any evidence to support its assertion that when the crossing guard is down the counter balance extends across the sidewalk far enough to prevent anyone from illegally crossing. PennDOT’s Exhibit No.7 clearly shows vehicle tire marks extending from the sidewalk, which is next to the counter balance, onto the railroad tracks. We note that a motor vehicle could not traverse the sidewalk if the counter balance blocked its path. Furthermore, as PennDOT pointed out, it is highly unlikely that any motor vehicle would use the sidewalk to circumvent the crossing unless the gate was down. As a result of the Borough’s failure to present countervailing evidence to support its argument, we will deny the Borough’s Exception No.7.
Finally, we will address the Borough’s Exceptions Nos.5 and 8 wherein the Borough contends that the Recommended Decision is not based upon adequate evidence and that the Borough was not given an opportunity to present evidence relative to this proposed problem. We note that the Borough did not object to or challenge the validity of Exhibit No.7, the photograph showing tire marks extending from the Main Street sidewalk across the railroad tracks during the evidentiary hearing. The Borough however, contends that this isolated set of tracks does not establish a danger of such a nature that a post should be placed in the sidewalk. We believe that Exhibit No.7 speaks for itself.
This photograph shows that motor vehicles can access the tracks by using the sidewalk to circumvent the gate and, that at least one vehicle did just that. Under these circumstances, we find that it was reasonable and appropriate, and in accord with the evidence for ALJ Nemec to order the Borough to install a sidewalk barrier. We conclude that there is substantial evidence to establish that the Borough should take the precautionary measure of installing a fourinch steel post or other suitable barrier in the sidewalk adjacent to the Main Street crossing.
We will, therefore, deny these Exceptions of the Borough.
Conclusion
We have carefully reviewed the record as developed in this proceeding, including the ALJ’s Recommended Decision and the Exceptions filed thereto. Based on our review, we conclude that the Exceptions of the Borough are without merit and will be denied. The Recommended Decision of ALJ Nemec, issued March6, 2001, will be adopted to the extent that it is consistent with this Opinion and Order; THEREFORE,
IT IS ORDERED:
1.That the Exceptions of West Newton Borough, Westmoreland County, to the Recommended Decision of Administrative Law Judge MichaelA. Nemec, issued March6, 2001, are denied.
2.That the Recommended Decision of Administrative Law Judge MichaelA. Nemec, issued March6, 2001, is adopted to the extent that it is consistent with this Opinion and Order.
3.That the Complaint of Carol Ann Shoemaker against CSX Transportation, Inc., et al., docketed at C00992984, is dismissed for failure to carry the burden of proof.
4.That the Borough of West Newton, which is a concerned municipal corporation, is directed, at its sole expense, to install a fourinch steel post, or other suitable barrier, in the sidewalk adjacent to the Main street crossing in a manner to preclude the use of the sidewalk by a motor vehicle to circumvent the gates at the Main Street crossing of the CSX Transportation, Inc. tracks in the Borough, as demonstrated in the record of this case. Such installation is to be completed within ninety(90) days after the entry of the final order in this matter.
5.That CSX Transportation, Inc., is directed to cease and desist from the alteration of any rail-highway crossing without first having obtained an Order from this Commission.
BY THE COMMISSION,
James J. McNulty
Secretary
(SEAL)
ORDER ADOPTED: July 13, 2001
ORDER ENTERED: July 16, 2001
1
[1]There was no indication that the Borough served the Exceptions on all parties. As a result, the Exceptions were served upon all parties by Secretarial Letter dated April2, 2001.
[2]A “crossing” under the Code is an intersection of two or more public utilities. Southeastern Pennsylvania Transportation Authority v. Pennsylvania Public Utility Commission, 592 A.2d 797 (Pa. Cmwlth. 1991). A “railroad-highway crossing” is an intersection of a highway with a railroad right-of-way, upon which railroad tracks lie, and can be at, above or below the grade of the tracks. (Id.).
[3]While it true that the appropriate time to introduce this information was at hearing, or even in a Petition for Reconsideration, in order to thoroughly assess this matter, we will consider Exceptions No.6 and 7. We note that under our existing regulations at 52 Pa. Code §1.2(c) the Commission or presiding ALJ may waive any procedural deadline or requirement, at any stage of a proceeding, so long as the waiver does not adversely affect the substantive rights of a party to the proceeding. Because the procedural modification at issue here is largely one of timing, we conclude that no substantive rights would be affected.