date: subject: 1-00970069 to100 lackawanna avenue scranton, pennsylvania ... township submit into...

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COMMONWEALTH OF PENNSYLVANIA

DATE: October 23, 1997

SUBJECT: 1-00970069

TO: Office of Administrative Law Judge

FROM: 1/ James J. McNulty, Acting Secretary/

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).

Attached is memorandum received from the Bureau of Transportation and Safety - Rail Division suggesting that the above entitled proceeding be reassigned to your Office to be set for hearing and that testimony be adduced at the hearing upon the attached list of questions and procedures.

The following parties are to be served notice of the hearing when scheduled:

Fairview TownshipPennsylvania Department of TransportationReading,Blue Mountain and Northern Railroad CompanyLuzerne CountyPennsylvania-American Water CompanyPG EnergyConsolidated Rail Corporation

This matter is assigned to your Office for appropriate action.

AttachmentU

cc: TSL - memo onlyTSR - memo only

OCT 24 mr

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COMI\®iWEALTH OF PENNSYLVANIA^

PENNSYLVANIA PUBLIC UTILITY COMMISSION P.O. BOX 3265, HARRISBURG, PA 17105-3265 in reply please

REFER TO OUR FILE

February 17, 1998

In Re: 1-00970069

(See attached list)

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) .

Hearing Notice

case will be held as follows:

Type:

Date:

Time:

Location:

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Initial Hearing

Tuesday, April 14, 1998

10:00 a.m.

Room 318Scranton State Office Building

100 Lackawanna Avenue Scranton, Pennsylvania

Administrative Law Judge Richard LovenwirthRoom 317 Scranton Sta£§ Office Building

100 Lackawanna Avenu

Scranton, PA 18503 _Telephone: (717) 963-48]/^g

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Presiding Officer:

We have enclosed a list of questions prepared by the Bureau of Transportation & Safety indicating information to be developed at the hearing along with other relevant testimony.

Each party should submit testimony and exhibits with respect to the entire crossing alteration project with the understanding that the Commission may, in determining this manner, take

jurisdiction over any portion of the project.

If any party intends to offer prepared written testimony, the testimony must be served on the presiding officer and each

party at least 20 days prior to the hearing unless a different schedule has been ordered by the presiding officer.

The Commission's rules require that all parties, except for

those individuals appearing on their own behalf, be represented

by counsel. Therefore, you should have an attorney of your choice file an entry of appearance before the scheduled hearing.

If you intend to file exhibits, 2 copies of all hearing

exhibits to be presented into evidence must be submitted to the reporter. An additional copy must be furnished to the Presiding Officer. A copy must also be provided to each party of record.

If you are a person with a disability, and you wish to

attend the hearing, we may be able to make arrangements for your special needs. Please call Norma Lewis at the Public Utility

Commission:

• Scheduling Office: 717-787-1399

• AT&T Relay Service number for persons who are deaf or

hearing impaired: 1-800-654-5988.

pc: Judge LovenwirthJohn Frazier - BPL 101John Wilson - T&SDave Hart - T&S Rail Division

Norma LewisAnn M. Humes, Scheduling Officer

Beth Plantz Docket Section Calendar File

1-00970069 QUESTIONS AND PROCEDURE October, 1997

1. Reading, Blue Mountain and Northern Railroad Company submit testimony as to the exact corporate name of the owner and operator of the line of railroad involved at the subject rail-highway crossing.

2. Reading, Blue Mountain and Northern Railroad Company submit a plan or map of the general area of the involved crossing showing, among other things, the location of the existing rail-highway crossing, the highway involved, adjacent highways and streets, other public rail-highway crossings along the involved rail line and any facilities such as rail passenger stations, residences or business enterprises affected by the involved rail-highway crossing; and present testimony describing the submitted plan or map.

3. Reading, Blue Mountain and Northern Railroad Company submit testimony describing the general type of the crossing structure and approach roadways, including number of spans, principal dimensions, roadway width, number and width of traffic lanes and sidewalks, and the horizontal and vertical clearance of the structure with respect to the railroad track; identify the date the crossing was constructed, the purpose of its construction and who constructed it.

4. Reading, Blue Mountain and Northern Railroad Company submit testimony indicating the number of tracks presently located at the crossing site and state whether any track is electrified; state the volume, class and approximate speed of all trains operated daily over these tracks; and state whether any changes in such operations are contemplated in the foreseeable future.

5. Reading, Blue Mountain and Northern Railroad Company state how the railroad company benefits from the existence of the subject above-grade crossing.

6. Reading, Blue Mountain and Northern Railroad Company submit testimony describing in detail the conditions, if any, presently existing at the crossing structure and in the vicinity thereof, which, in its opinion, render the crossing dangerous or inadequate for the safety, accommodation or convenience of the highway, pedestrian or rail users currently traversing the crossing area.

7. Reading, Blue Mountain and Northern Railroad Company submit testimony describing the general nature, extent and estimated cost of any repair work or changes which it deems necessary or advisable at the subject crossing.

B. Reading, Blue Mountain and Northern Railroad Company state whether it will agree to perform the actual work, including plan preparation if required, and assume the cost for any repairs to the existing crossing found necessary and ordered by the Commission and, if not, which party or parties, in its opinion, should be required to perform such work and assume the costs thereof, and state its reasons therefor.

9. Reading, Blue Mountain and Northern Railroad Company state what maintenance and/or improvement it, or any predecessor railroad, has performed at the crossing, if any, together with approximate dates and costs of such work; and state what obligation it has been assigned or has assumed with respect to maintenance of the subject crossing.

10. Reading, Blue Mountain and Northern Railroad Company state what portions of the involved crossing it will agree to maintain in the future and what maintenance costs it will agree to assume; and state which party or parties should, in its opinion, be required to perform and assume the cost of maintenance of the remaining portions, if any, and state its reasons therefor.

1-00970069 2 October# 1997

11. Consolidated Rail Corporation answer Question Nos. 1, 6# 7, 8# 9 and 10 as if same were directed to it.

12. Fairview Township (Township) submit testimony regarding the highway at the involved crossing# indicating a name# route number and termini thereof, and explaining its relationship to other existing highways and streets in the area.

13. Township submit testimony indicating the daily volume of vehicular and pedestrian traffic that is using the existing crossing, including a breakdown of type of vehicles# and also estimate the volume of vehicular and pedestrian traffic that will use it in the future# including a breakdown by type of vehicle.

14. Township state how its residents benefit as a result of the existence of the subject above-grade crossing.

15. Township state whether the existing crossing is included in any highway improvement plan or is currently programmed for replacement.

16. Township submit into the record copies of any past orders or actions of this Commission, or its predecessor# which may have dealt with the construction# alteration, reconstruction or maintenance of the crossing involved herein.

17. Township submit into record copies of the most recent bridge inspection report for the existing crossing structure and submit testimony explaining the conclusions and recommendations in that report.

18. Township submit testimony describing in detail the conditions, if any# presently existing at the subject crossing and in the vicinity thereof# which# in its opinion, render the crossing dangerous or inadequate for the safety# accommodation# or convenience of the highway, pedestrian or rail users currently traversing the crossing area.

19. Township submit testimony describing the general nature, extent and estimated cost of an repair work or changes which it deems necessary or advisable at the subject crossing.

20. Township state whether it will agree to perform the actual work# including plan preparation if required, and assume the costs for any repairs to the existing crossing found necessary and ordered by the Commission and# if not# which party or parties, in its opinion# should be required to perform such work and assume the costs thereof# and state its reasons therefor.

21. Township state whether the facilities of any non-carrier public utility company will be affected by its recommended repair work and explain the extent of the involvement.

22. Township state whether any Federal or Bridge Bill funds are available for any improvements ordered by the Commission.

23. Township state what maintenance and/or improvements it has performed at the existing crossing# if any, together with approximate date and costs of such work; and state what its past and present obligations are with respect to maintenance of the structure and the highway approaches thereto.

1-00970069 3 October, 1997

24. Township state what portions of the involved crossing it will agree to maintain in the future and what maintenance costs it will agree assume, and state which party or parties should, in its opinion, be required to perform and assume the cost of maintenance of the remaining portions, if any, and state its reasons therefor.

25. Pennsylvania Department of Transportation (Department) state how the Commonwealth's transportation system benefits from the existence of the subject above-grade crossing.

26. Department answer Question Nos. 15, 16, 18, 19, 20, 21, 22, 23 and 24 as if same were directed to it.

27. Luzerne County state how the County's transportation system benefits from the existence of the subject above-grade crossing.

28. Luzerne County submit answers to Question Nos. 16, 16, 19, 20, 21, 23 and 24 as if same were directed to it.

29. Non-carrier public utility companies each submit testimony and exhibits in regard to the location of its facilities, in public and private right-of-way, at or adjacent to the involved crossing. This testimony shall include whether said utilities agree to assume the cost and expense of altering, relocating or reconstructing their facilities in the event the Commission directs that any work be done at the crossing and approaches thereto.

30. Query whether any party is aware of the involvement of any non-carrier public utility company other than those listed as parties in interest to this proceeding.

31. Query whether ‘any party in interest, or any other party, has any additional relevant testimony to offer.

COMMONWEALTH OF PENNSYLVANIA

PENNSYLVANIA PUBLIC UTILITY COMMISSION P.O. BOX 3265, HARRISBURG, PA 17105-3265

February 18,1998

Gary R. Hoffman, Esquire Director, Pennsylvania Code & Bulletin Room 647, Main Capitol Building Harrisburg, PA 17120

document

F0LD_Re: Notice

Investigation Upon the Commission’s Own Motion Docket No. 1-00970069

Dear Mr. Hoffinan:

Enclosed please find two (2) copies of a notice as captioned above. The Commission requests this notice be published in the Pennsylvania Bulletin.

docketedVery truly yours,

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OBarbara Bruin Executive Director

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EnclosureFirst Deputy Chief Counsel Pankiw Regulatory Coordinator Leming

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om0£tJ Scheduling Unit/Ann Humes

^/New Assignments and Filings

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PENNSYLVANIA PUBLIC UTILITY COMMISSION

NOTICE

1-00970069Investigation 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).

An Initial Hearing on this matter will be held Tuesday, April 14, 1998 at 10:00 a.m. in

Room 318, Scranton State Office Building, 100 Lackawanna Avenue, Scranton, Pennsylvania,

when and where all persons in interests may appear and be heard, if they so desire.

BY THE COMMISSION,

James J. McNulty Secretary

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COMMONWEALTH OF PENNSYLV ANIA DEPARTMENT OF TRANSPORTATION

Office of Chief Counsel Forum Place

555 Walnut Street - 9th Floor^Harrisburg, PA 17101-1900

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

March 4, 1998

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

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In Re: 1-00970069

Dear Secretary McNulty:

Enclosed for filing please find an original and three (3) copies of my Notice of Appearance on behalf of the Pennsylvania Department of Transportation. I hereby certify that a copy of this Notice has been served upon the parties of record in the manner indicated on the attached Certificate of Service.

Very Truly Yours,

cc: All Parties of RecordWilliam D. Pickering, P.E., Chief, Right of Way & Utilities (Attn: Roger Aulakh, P.E.) Joe Strok, District 4-0

BEFORE THEPENNSYLVANIA PUBLIC UTILITY COMMISSION

Investigation Upon the Commission's Own :Motion to determine the condition, disposition. Docket Numberand responsibility for maintenance of the existingcrossing structure carrying Mary Street (T-439) : 1-00970069above-the-grade of the track of the Reading, BlueMountain and Northern Railroad Company in :Fairview Township, Luzerne County :(AAR 361 417 S).

NQTICEX)E. APPEARANCE

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Kindly enter my appearance in the above-designated matter on behalf of the Commonwealth of Pennsylvania, Department of Transportation. I am authorized to accept service on behalf of the said participant in this matter.

On the basis of this notice, I request a copy of each document hereafter issued by the Commission in this matter.

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Respectfully Submitted,

Ja^n D. Sharp

Assistant CounselAtty ID # 80488Commonwealth of Pennsylvania Department of Transportation Forum Place - 9th Floor 555 Walnut Street Harrisburg, Pa 17101-1900 (717) 787-3128DOCKETED

CERTIELCATILQF SERVICE

I, Jason D. Sharp, do hereby certify that I have served a true and correct copy of my Notice of Appearance upon the parties listed below by First Class Mail, postage prepaid this 5th day of March, 1998:

H. James Brozena County of Luzerne Luzerne County Courthouse Wilkes-Barre, PA I 87 I I

Auce Davis, Secretary Fair view Township 65 Shady Tree Drive Fairview, PA I 8707

Jeffrey H. Sunday, Esquire PG Energy Inc.Wilkes Barre Center, 3Q Public Square Wilkes-Barre, PA I 87 I I -060 I

Velma A. Redmond, Esquire PA-American Water Company 800 West Hershey Park Drive Hershey, PA I 7033

J.D. Cossell, Chief Engineer Con rail Corp.200 I Market Street, P.O. Box 4 14 12 Philadelphia, PA I 9 I O I -1 4 I 2

Reading, Blue Mountain Si Northern Railroad Company P.O. Box 2 I 8 PortCunton, PA 19549

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R.K. SHrm, Esquire

Pa PUC Trans & Safety Rail Division

P.O. Box 3265Harrisburg, I 7 l 05-3265

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Commonwealth of Pennsylvania Department of Transportation Office of Chief Counsel Forum Place - 9th Floor 555 Walnut Street Harrisburg, Pa. 17101-1900 (717) 787-3128

Pennsylvania-American Water Company

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

(717) 533-5000 • FAX (717) 531-3213

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Susan D. Simms Associate Corporate Counsel

March 11, 1998

James J. McNulty, Secretary Pennsylvania Public Utility Commission North Office Building, Room B-20

North & Commonwealth, P.O. Box 3265 Harrisburg, Pennsylvania 17105-3265

Re: Investigation upon the Commission's own motion to determine the condition,disposition, and responsibility for maintenance of the existing crossing stfuctureOarrying Mary Street (T-439) above the grade of the track of the Reading, BluejMouritain and

Northern Railroad Company in Fairview Township, Luzerne County (AAR 36JT417 S) at Docket No. 1-00970069 P.

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Dear Mr. McNulty:

Enclosed for filing, please find an original and three (3) copies of my Notice of Appearance on behalf of the Pennsylvania-American Water Company. I hereby certify that a copy of this Notice has been served upon the parties of record in the manner indicated on the attached Certificate of Service

By this notice, please remove Velma A. Redmond as attorney representing Pennsyl vania- American Water Company in the above-referenced proceeding.

Respectfully,

i.Susan D. Simms, Esq.

Associate Corporate Counsel

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Attachment

c: Parties of Record

M.J. Caponigro, NE Operations

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Dedicated to Quality Water and Superior Service

An E.E.O. Employer M/F//HA

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COMMONWEALTH OF PENNS>Y(JL.VAN 1A PENNSYLVANIA PUBLIC UfldfV 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. 1-00970069

above the grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County

( AAR 361 417 S)

NOTICE OF APPEARANCE

Please enter my appearance in the above-designated matter on behalf of Respondent, Pennsylvania-American Water Company. I am authorized to accept service on behalf of said participant in this matter. 1 am already receiving or have access to a copy of each document issued by the Pennsylvania Public Utility Commission in this matter and do not on the basis of this notice require an additional copy.

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Susan D. Simms Associate Corporate Counsel Pennsylvania-American Water Company

800 West Hershey Park Drive

P.O. Box 888

Hershey, Pennsylvania 17033-0888 (717)533-5000

yimar 18 1998

DOCUMENT

Dated: March 11, 1998


*

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

l hereby certify that 1 have this day served a true copy of the foregoing document upon the

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

BY FIRST CLASS MAIL

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

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

Reading, Blue Mountain & Northern

Railroad Company P.O. Box 218 Port Clinton, PA 19549

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

J .D. Cossell, Chief Engineer

Conrail Corp.2001 Market St., P.O. Box 41412 Philadelphia, PA 19101-1412

Jason D. Sharp, Assistant Counsel Department of Transportation Forum Place, 555 Walnut St. - 9111 FI.

Harrisburg, PA 17101-3128

Dated this 1111' day of of March, 1998.

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.I 5 SOUTH FRANKUN STREET

WILKES-BARRE, PENNSYLVANIA 187 1 10075

EUGENE ROTH MARK A. VAN LOON LAWRENCE W. ROTH Telephone

DANIEL G. FLANNERY LEE S. PIATT THOMAS B. CARPENTER 7 1 7-826-5600

MARSHALL S, JACOBSON ROBERTO. SCHAUB ELIZABETH C. LEO ••MURRAY UFBERG ROBERT N. GAWLAS. JR. NICHOLAS C. STROUMBAKISBRUCE C. ROSENTHAL STEVEN P. ROTH TRACY M. FALKOWfTZ tt 7 1 7-826-5640

DONALD H, BROBST JAMES C. OSCHAL *t MICHAEL K. DURICKOJOSEPH L. PEPSICO JOSEPH G. FERGUSON ERNEST A. SPOSTO, JR. Internet

WWW.NEPALAW.COM

[email protected]

HOWARD M, LEVINSON GEORGE F. SHOVLIN ** THOMAS J. MacNEELYALAN S. HOLLANDERGARRY S. TAROLIRICHARD A. RUSSO

MARY GRIFFIN CUMMINGS MARY JO KISHELPATRICIA ERMEL LAKHIA a

Or Counsel:

HAROLD ROSENNJAMES P. VALENTINE MARK W. DRASNIN JOSEPH J. SAVTTZ

Also admitted to practice in:

* New York Direct Dial

* * New York Only 7 1 7-826-568 1

n Washington. D.C.* New Jersey DIRECT FAXti Florida 7 1 7-83 1 -72 1 5


March 13, 1998/~\ r: LJ~\

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 (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


Enclosed for filing are an original and four (4) copies of this firm’s Notice of Appearance on behalf of Fairview Township in the above-captioned matter. We have served a copy of this Notice upon all parties of record in the manner indicated on the attached Certificate of Service.

I would greatly appreciate your time-stamping and returning to me any unnecessary copies of the Notice of Appearance and the Certificate of Service.

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

RNG/laoEnclosures

Sincerely,

VEDROBERT N. GAWLAS, JR.

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cc: Marshall S. Jacobson, Esquire (w/enclosures) -A PUBLIC UTILITY COMMISSlO*Alice Davis, Secretary - Fairview Township (w/enclosures) PROTHONOTARY’S CFPiCbAH Parties of Record (w/enclosures)

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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).

BEFORE THE________________PENNSYLVANIA PUBLIC UTILITY COMMISSION

NOTICE

Please enter this firm’s appearance in the above-designated matter on behalf of Fairview

Township. We are authorized to accept service on behalf of Fairview Township in this matter.

On the basis of this notice, we request a copy of each document hereafter issued by the

Commission in this matter.

Docket Number

1-00970069

lPPEARANCE

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RESPECTFULLY SUBMITTED,

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

BY:MARSHALL S. JACO^S^N, ESQUIl

Attorney I.D. #01770

BY: 'fat*. A.

ROBERT N. GAWLAS, J#, ESQUIRE

Attorney I.D. #46608 15 South Franklin Street Wilkes-Barre, PA 18711 (717) 826-5681

Attorneys for FAIRVIEW TOWNSHIP

DOCUMENTdocketed

mar 19 1998

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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

CERTIFICATE OF SERVICE U U

I, ROBERT N. GAWLAS, JR., ESQUIRE, do hereby certify that I have served a true and

correct copy of the foregoing Notice of Appearance upon the parties listed below by First Class Mail,

postage prepaid, this /J^dav of March, 1998.

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

Jason D. Sharp, Esquire Commonwealth of Pennsylvania Department of Transportation Office of Chief Counsel Forum Place - 9th Floor 555 Walnut Street Harrisburg, PA 17101-1900

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

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Velma R. Redmond, Esquire PA American Water Company 800 West Hershey Park Drive Hershey, PA 17033

J.D. Cossell, Chief Engineer Conrail Corp.2001 Market StreetP.O. Box 41412 Philadelphia, PA 19101-1412

Reading, Blue Mountain & Northern Railroad CompanyP.O. Box 218Port Clinton, PA 19549

R.K. Smith, EsquirePA PUC Trans & Safety Rail DivisionP.O. Box 3265Harrisburg, PA 17105-3265

BY: y (VROBERTN. GAWLAS, Jf^ESQUIRE

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Jeffery H. SundayHicisl’ Counvl

PG EnergyA Peonsylvanra Enteronses Company ^

March 18, 1998

James J. McNulty, Secretary Pennsylvania Public Utility Commission

North Office Building

P.O. Box 3265 Harrisburg, PA 17120

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 tracks of the Reading,Blue Mountain and Northern Railroad Company in

Fairview Township, Luzerne County

Docket No.: 1-00970069


Enclosed please find an original and three copies of my Notice of Appearance on behalf of PG Energy Inc. in the above matter. I hereby certify that a copy of this notice has been served upon the parties of record First

Class Mail on the attached Certificate of Service. ,

Sincerely,—I CD CO

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cc: H. James BrozenaReading Blue Mountain and Northern

Railroad Company Alice Davis J.D. CosselJason D. Sharp, Esquire Susan D. Simms, Esquire

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One PEI Center

Wilkes-Barre, PA 18711-0601

Direct Dial: (717)829-8824

Fax: (717)829-8652


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

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Please enter my appearance in the above-captioned matter on behalf of PG

Energy Inc. I am authorized to accept service on behalf of said participant in this

matter.

I am already receiving or have access to a copy of each document issued by

the Commission in this matter and do not, on the basis of this Notice, require an

additional copy.

PG ENERGY INC.

BY:Jeffery H. Sunday, Esquire PG Energy Inc.One PEI Center Wilkes-Barre, PA 18711 (717) 829-8824

OOCUMENiFOLDER

DOCKETEDMAR 2 0 1998


I, Jeffery H. Sunday, Esquire, certify that I have served a copy of the

foregoing Notice of Appearance upon the following on If*? If

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

Reading, Blue Mountain and Northern Railroad CompanyP.O. Box 218Port Clinton, PA 19549

Alice DavisSecretary, Fairview Township 65 Shady Tree Drive Fairview, PA 18707

J.D. Cossel Conrail Corp.2001 Market Street P.O. Box 41412 Philadelphia, PA 19101-1412

Jason D. Sharp, Esquire Department of Transportation Forum Place - 9th Floor

555 Walnut Street Harrisburg, PA 17101-1900

Susan D. Simms, Esquire PA-American Water Company 800 West Hershey Park Drive Hershey, PA 17033-0888

PG ENERGY INC.

Jeffery H. Sunday, EsquirePG Energy Inc.One PEI Center Wilkes-Barre, PA 18711 (717) 829-8824

PHILADELPHIA OFFICE: SIXTEENTH FLOOR

TWO PENN CENTER PLAZA PHILADELPHIA, PA 19102

(215)563-9400

Gollatz, Griffin & Ewing, p.g^ * yATTORNEYS AT LAW

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\m213 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

March 27, 1998

ProthonotaryPennsylvania Public Utility Commission North Office Building Commonwealth Avenue & North

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

Re: Investigation Upon the Commission's Own Motion'to ci>determine the condition, disposition, and C--’.. .v*responsibility for maintenance of the existing-^1 I- crossing structure carrying Mary Street {T439^i ^

above-the-grade of the track of the Reading, BjLue 'jd Mountain and Northern Railroad Company in Faifview

Township, Luzerne County (AAR 361 417 S).

Docket No. 1-00970069 Notice of Appearance

Dear Sir or Madam:

Enclosed for filing in the above captioned proceeding are an original and three (3) copies of Notice of Appearance in the above-referenced proceeding.

Kindly time stamp the extra copy of the Notice to indicate receipt and return it to me in the stamped, self-addressed

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Prothonotary, March 21, 1998 Page 2

PA PUC

envelope provided for your convenience.

Respectfully,

Enclosures

cc: All Persons Shown on the Service List (w/encl.)

EMH/bahH:\WPDATA\TRANS\RBMNVMARY\PUCO I WPD


Investigation Upon the Commission's )Own Motion to determine the condition, ) disposition, and responsibility for )maintenance of the existing crossing ) Docket No.structure carrying Mary Street (T439) )above-the-grade of the track of the ) 1-00970069Reading, Blue Mountain and Northern )Railroad Company in Fairview Township, )Luzerne County (AAR 361 417 S) )


Please enter the appearance of Gollatz, Griffin & Ewing,

P.C. by Eric M. Hocky in the above-designated matter on behalf of

Reading Blue Mountain & Northern Railroad Company. I am authorized

to accept service on behalf of said participant in this matter.

On the basis of this Notice, we request a copy of each

document hereafter issued by the Commission in this matter.

GOLLATZ, GRIFFIN & EWING, P.C.

Dated: March 27, 1998

West Chester, PA 19381-0796 (610) 692-9116Counsel for Reading Blue Mountain & Northern Railroad Company

H:\WPDATA\TRANS\RBMN\MARY\APPEARAN.DOC docketedMAR 31 1998


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 (relating to service by a participant):

Administrative Law JudgeRichard LovenwirthRoom 317 Scranton State OfficeBuilding100 Lackawanna Avenue Scranton, PA 18503

W. D. Pickering PE ChiefRight of Way & Utility Div.555 Walnut Street Harrisburg, PA 17120

J. D. Cossell, Chief Engineer Conrail Corp.2001 Market Street, 12-B P.O. Box 41412Philadelphia, PA 191010-1412

R. K. Smith, Esq.PA PUC Trans & Safety Rail Division P.O. Box 3265 Harrisburg, PA 17105-3265

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


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

Joseph StrokDepartment of Transportation Engineering Dist 4-0 O'Neill Highway Dunmore, PA 18512

Susan D. Simms, Esq.Associate Corporate Counsel Pennsylvania-American Water Co. 800 West Hershey Park Drive P.O. Box 888 Hershey, PA 17033-0888

Dated this 27th day of March, 1998. -

/W/W____________Ei^lc M. HOtzfcy

GOLLATZ, GRIFFIN & EWING, P.C.213 West Miner Street

P.O. Box 796West Chester, PA 19381-0796 (610) 692-9116Counsel for Reading Blue Mountain & Northern Railroad Company

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

• 1

Pennsylvania-American Water Company


(717) 533-5000 • FAX (717) 531-3213

Susan D. Simms Associate Corporate Couns

documentfOLDER

March 30, 1998

UJ

V-OCOCD

VIA UPS OVERNIGHT DELIVERY

Honorable Richard Lovenwirth ;.jAdministrative Law Judge V-J ^Pennsylvania Public Utility Commission B^Room 317 Scranton State Office Building fv; u100 Lackawanna Avenue *.. i f

Scranton, Pennsylvania 18503~T) ---

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 No. 1-00970069_________________________

Dear Judge Lovenwirth:

Enclosed, pursuant to the March 18,1998 Hearing Notice regarding the above-captioned proceeding, please find Pennsylvania-American Water Company employee David L. Guskey’s prepared written testimony. As evidenced by the enclosed Certificate of Service all parties to this proceeding have been duly served with a copy of the testimony and Exhibit #1.

Respectfully,


Enclosure

c: James J. McNulty, SecretaryParties of Record


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

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1-00970069 Initial Hearing Tuesday, April 14, 1998

Pennsylvania-American Water CompanyAAR 361 417 S

Mary Street (T-439)Fairview TownshipLuzerne County

Above-The-GradeTestimony of David L. Guskey

Q. Please state your full name.

A. David L. Guskey

Q.

A

Q.

A.

Q.

A.

By whom are you employed?

.Pennsylvania-American Water Company

What is your business address?

20 East Union Street, Wilkes-Barre, Pennsylvania

What is your position with Pennsylvania-American Water Company?

Operations Manager

Q. Are you authorized to testify on behalf of Pennsylvania-American Water Company in this

matter?

A. Yes

Q. How long have you been employed by Pennsylvania-American Water Company?

A. 31 years.

Q. What is your prior work experience?

A. Various management positions across Pennsylvania dealing with all phases of water utility

operations.

Q. What has been your formal education?

A. Waynesburgh College. Major in Business Administration and Accounting.

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Q. What are your duties, generally, as Operations Manger?

A. Conduct day to day activities of Distribution and outside commercial functions.

Q. As part of your duties, generally, do you supervise and plan for water main extensions and

improvements?

A. Yes.

Q. Also, as part of your duties, do you have the obligation to prepare relocation cost estimates

when they are required to relocate the water lines?

A. Yes.

Q. Is there anything else in connection with your qualifications which you would like to state?

A. I am also an active member of the American Water Works Association, Pennsylvania Sectior

and have chaired management and distribution committees of the organization.

Q. In the course of your duties with the Water Company, do you have anything to do with

reviewing the bids which are made by independent contractors who do construction work

and relocation pipe line work for the Water Company?

A. Yes-

Q. Have you had occasion to pass upon the bidding of these contractors from time to time, as to

whose bid was the lowest of the most favorable bid?

A. Yes.

Q. Would you have responsibility from time to time to select who was the lowest bidder?

A. Yes.

Q. Are you authorized by the Water Company to use your discretion in connection with your

duties to determine which bidder would be the lowest responsible bidder on a particular

project?

A. Yes.

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Q. Would you have knowledge of the quality of work that the various bidding contractors

perform on projects of the Water Company?

A. Yes.

Q. In connection with the subject crossing, have you had an opportunity to review the Water

Company’s facilities in the area of the crossing?

A. Yes.

Q. Please describe the Water Company’s facilities located in the area of this crossing.

A. Pennsylvania-American Water Company maintains a 6" steel and cast iron water main

attached to the bridge.

Q. After your review, are you able to form an opinion as to whether the removal of the crossing

will necessitate any alteration or relocation of the Water Company’s facilities?

A. Yes, the Nuangola Road crossing is a one way water feed to approximately 20 customers on

route 309 and beyond. Water flows from Lehigh Street through the bridge crossing to route

309. Without the crossing, an alternative would have to be developed in order to maintain

water service to these customers.

Q. After your review, are you able to from an opinion as to whether any alteration of the

crossing will necessitate any alteration or relocation of the Water Company’s facilities?

A. No.

Q. Why is it impossible to make a determination?

A. It is impossible to make a determination because the Water Company has not been provided

with any plans to indicate what construction may be involved.

Q. Are you able to determine, at this time, the nature, extent and cost of any expenses in the

relocation of the Water Company’s facilities?

A. No.

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Q. Why is it impossible at this time to determine the nature, extent and cost of any expenses in

the relocation of the Water Company’s facilities?

A. Because, the Water Company has not been provided with any Engineering Drawings showin;;

the proposed changes to the crossing. The Water Company cannot prepare cost estimates

without these drawings because the Water Company is uncertain of the scope of work

involved.

Q. What type of alteration to the crossing would least affect the Water Company’s facilities, as

they are presently in place?

A. Any alteration that would leave as is the support structure of the pipe, as it relates to the

bridge.

Q. Under what circumstances would the alteration of the crossing result in the interruption of

service to customers in the area?

A. If the alteration would require the removal of the pipe or sections of the pipe.

Q. In the event that it would be necessary to relocate the water mains, who would perform the

work?

A. This work would be contracted out by the Water Company, except for connections from the

relocated water line to the existing water line.

Q. In the event that your water mains and/or connecting facilities would be relocated, what

position does the Water Company take in connection with the cost?

A. The Water Company would not be willing to bear the cost of such relocation. We would

expect the altering party to assume all costs.

Q. Are there any reasons why the Water Company would desire to relocate its facilities in the

area?

A. No.

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Q. As presently located, is the 6”main adequate for water distribution purposes in the area of the

crossing?

A. Yes

Q. Would the ratepayers of the Water Company receive any benefit as a result of any relocation

of the water mains or connecting facilities?

A. No.

Q. Submit into the record a plan on which is indicated Pennsylvania-American Water

Company’s existing facilities in the vicinity of the at-grade crossing, and specify the type, sizje

and location of such facilities.

A. Pennsylvania American Water Company’s Exhibit #1 attached.

Q. Are you familiar with the Pennsylvania-American Water Company’s Exhibit # 1 ?

A. Yes.

Q. Does Pennsylvania-American Water Company’s Exhibit #1 accurately reflect the specific

location of the Water Company’s present 6" water main and connecting facilities in the area

of the crossing?

A. Yes.

Page -5-


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) : Docket No. 1-00970069above the grade of the track of the Reading, Blue

Mountain and Northern Railroad Company :in Fairview Township, Luzerne County

(AAR 361 417 S)


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


BY FIRST CLASS MAIL



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

J.D. Cossell, Chief Engineer Conrail Corp.2001 Market St., P.O. Box 41412 Philadelphia, PA 19101-1412

Reading, Blue Mountain & Northern Railroad Company

P.O. Box 218 Port Clinton, PA 19549

Jason D. Sharp, Assistant Counsel Department of Transportation Forum Place, 555 Walnut St. - 9* FI. Harrisburg, PA 17101-3128

R.K. Smith, Esquire Robert N. Gawlas, Jr., EsquirePA PUC Transportation & Safety Rail Division Fairview Township P.O. Box 3265 15 South Franklin StreetHarrisburg, PA 17105-3265 Wilkes-Barre, PA 18711

Dated this 30th day of March, 1998.

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 & Gree

I 5 SOUTH FRANKLIN STREET WILKES-BARRE, PENNSYLVANIA 187 1

n r-' P

: i

n

REPi___ i

EUGENE ROTH DANIEL G. FLANNERY MARSHALL S, JACOBSON MURRAY UFBERG BRUCE C. ROSENTHAL DONALD H. BROBST JOSEPH L. PERSICO 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 JOSEPH G. FERGUSON

GEORGE F. SHOVLIN M MARY GRIFFIN CUMMINGS MARY JO KISHEL PATRICIA ERMEL LAKHIA °

MARK W. ORASNIN

LAWRENCE W, ROTH THOMAS B. CARPENTER ELIZABETH C. LEO ** NICHOLAS C. STROUMBAKIS TRACY M. FALKOWTTZ tt MICHAEL K. DURICKO ERNESTA. SPOSTO, JR. THOMAS J. MacNEELY

Of Counsel: HAROLD ROSENN Joseph j. savitz

Telephone 7 I 7-826-5600

Telecopier 7 I 7-826-SS40

Internet

WWW.NEPAUAW.COM w i

E-MAIt?

[email protected]

Also admitted to practice in: * New York

•* New York Only n Washinoton, D.C.

$ New Jersey

tt Florida

March 31, 1998

Direct Dial 7 I 7-826-568 I

DIRECT FAX 7 I 7-83 I -72 I 5

James J. McNulty, Secretary 'Pennsylvania Public Utility Commission ::.P.O.Box 3265 :j

Harrisburg, PA 17105-3265 ^

Re: Investigation Upon the Commission’s Own Motion to determine the conditioh,disposition, and responsibility for maintenance of the existing: crossing structure carrying Mary Street (T439) above-the-grade of the track of jjie Reading, Blue Mountain and Northern Railroad Company ifr Fairiiew Township, Luzerne County (AAR 361 417 S).Docket No. 1-00970069


Enclosed for filing are an original and four (4) copies of the following: (1) Fairview Township’s Exhibit List; (2) Fairview Township’s List of Proposed Witnesses; and (3) a Certificate of Service. We have served copies of these documents upon all parties of record in the manner indicated on the Certificate of Service.

I would greatly appreciate your time-stamping and returning to me any unnecessary copies of the above documents.

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

Sincerely,

ROBERT N. GAWLAS, JR.^

RNG/lao Enclosurescc: Administrative Law Judge Richard Lovenwirth (w/enclosures)

All Parties of Record (w/enclosures)Marshall S. Jacobson, Esquire (w/enclosures)Alice Davis, Secretary, Fairview Township (w/enclosures)

U 0CUMEN1

FOLDER162731 1


Investigation Upon the Commission’s Own '-->c nMotion to determine the condition, disposition,

and responsibility for maintenance of the existing crossing structure carrying Mary Street

Docket Number CJl

(T439) above-the-grade of the track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne

1-00970069

County (AAR 361 417 S).

FAIRVIEW TOWNSHIP’S LIST OF PROPOSED WITNESSED

FAIR VIEW TOWNSHIP may offer the testimony of the following witnesses: - '

r, i'_'1. Harry R. Zearfoss, Chairman

Fairview Township Supervisors c.n65 Shady Tree Drive l“Jt t )

Fairview Township, PA 18707

Mr. Zearfoss may testify regarding the following: the highway at the involved crossing; the

benefits to the Township of the existence of the above-grade crossing; the existing conditions at the

crossing which render the crossing dangerous or inadequate for the highway and pedestrian users of

the crossing area; the work and costs which the Township will agree to assume with regard to the

crossing and the party or parties who, in the Township’s opinion, should be required to perform the

remaining work and assume the costs thereof; the maintenance performed by the Township at or

around the crossing; the portions of the crossing the Township will agree to maintain in the future and

the maintenance costs it will agree to assume and the party or parties who should, in the Township’s

opinion, be required to perform and assume the costs of maintenance of the remaining portions; past

orders or actions of the Commission dealing with the construction, alteration, reconstruction or

maintenance of the crossing.

:tet.J APR 06 W98 U

FOV162631 1

2. Dr. Gordon Snow, Superintendent Crestwood School DistrictLeatha Buff, Director of Transportation Crestwood School District 281 South Mountain Boulevard Mountaintop, PA 18707-1913 Rod Deets, Manager Deets-Rinehammer School Bus

Dr. Snow and/or Ms. Buff may testify that the Crestwood School District supports the

replacement of the Mary Street Bridge and that the School District is concerned because school busses

are required to turn around on Lehigh Street, rather than being able to use the bridge. Mr. Deets may

testify with regard to that same concern.

3. Joseph Intelicato, Chief of Police Fairview Township65 Shady Tree Drive Fairview Township, PA 18707

Chief Intelicato may testify with regard to public safety concerns relating to the Mary Street

Bridge.

4. David P. Hourigan, President Peter Kohl, Chief Mountaintop Hose Co. No. 1 P.O. Box 163Woodlawn Avenue & Lehigh Street Mountaintop, PA 18707

Mr. Hourigan and/or Mr. Kohl may testify regarding their recommendation that the Mary

Street Bridge be reopened, since the closed bridge represents a potential hazard for the residents of

Lehigh and Sterling Streets and subjects the Hose Company to potential interference with its

operations.

162631 1 2

5. Robert D. Coleman, President Nicholas Hollock, Jr., Secretary Mountaintop Area Ambulance Association 21 Lehigh Street Mountaintop, PA 18707

Mr. Coleman and/or Mr. Hollock may testify regarding the Ambulance Association’s public

safety concerns related to the closed Mary Street Bridge.

6. Reverend Paul M. MullenPastor of St. Jude’s Church and its mission church, St. Catherine’s Church 422 South Mountain Boulevard Mountaintop, PA 18707

Father Mullen may testify regarding his support for the replacement of the bridge and

regarding the benefit to St. Catherine’s Church of the existence of an open above-grade crossing.

7. Michael P. Hannagan, Structural Engineer/CADD Thomas E. Lawson, P.E., P.L.S.Scott R. Bush, P.E.David R. Yefko, Civil Designer/CADD Borton-Lawson Engineering, Inc.1460 Sans Souci Parkway Wilkes-Barre, PA 18702-2026

Messrs. Hannagan, Lawson, Bush and/or Yefko may testify with regard to the following issues:

the location of the Mary Street Bridge and its relationship to highways, streets and railways; the daily

volume of vehicular and pedestrian traffic; whether the crossing is included in any highway

improvement plan or is currently programmed for replacement; Borton-Lawson’s inspection of the

bridge, including the most recent Bridge Inspection Report and conclusions and recommendations as

a result of the inspections; existing conditions of the bridge and vicinity which render the crossing

dangerous or inadequate for the safety, accommodation, or convenience of the highway and pedestrian

users; the general nature, extent and estimated cost of repair or changes necessary or advisable at the

crossing; whether any Federal or Bridge Bill funds are available for any improvements ordered by the

Commission; past orders or actions of the Commission dealing with the construction, alteration,

162631 1 3

reconstruction or maintenance of the crossing; public utility facilities affected by recommended repair

work; and the party or parties who should be required to perform repair, replacement and/or

maintenance work.

8. Donna Engel Eric Hollock James Macree Robert Barly, Jr.Nellie Mullen

These individuals are all residents of Lehigh Street, Fairview Township and one or more of

them may testify regarding public safety and convenience concerns resulting from the current

condition of the Mary Street Bridge and regarding the benefits to the residents of the Soloman’s Gap

section of Fairview Township resulting from an open Mary Street Bridge.

FAIRVIEW TOWNSHIP does not waive, and specifically reserves, the right to call any

witness identified by any other party and any additional witness as may be necessary to address issues

raised during the proceedings in this matter. Further, FAIRVIEW TOWNSHIP does not waive, and

specifically reserves, the right to call less than all of the identified witnesses in order to maximize the

efficiency and coherence of its presentation based upon the cases presented by the other parties.



BY:MARSHALL S. JACO^ON, ESQUIREAttorney I.D. #01770ROBERT N. GAWLAS, JR., ESQUIREAttorney I.D. #4660815 South Franklin StreetWilkes-Barre, PA 18711(717) 826-5600


162631 1 4



CERTIFICATE

I, ROBERT N. GAWLAS, JR., ESQUIRE, do hereby certify that I have served true and

correct copies of Fairview Township’s Exhibit List, with Exhibits 1 through 25, and Fairview

Township’s List of Proposed Witnesses upon the parties listed below by First Class Mail, postage

prepaid, this 31st day of March, 1998.




Docket Number

1-00970069 ^•_D

^ C-3

c_n

OF SERVICE

162681 1

Susan D. Simms, EsquireAssociate Corporate CounselPennsylvania-American Water Company800 West Hershey Park DriveP.O. Box 888Hershey, PA 17033-0888

J.D. Cossell, Chief Engineer Conrail Corp.2001 Market Street P.O. Box 41412 Philadelphia, PA 19101-1412


David Salapa, EsquirePA PUC Trans & Safety Rail DivisionP.O. Box 3265Harrisburg, PA 17105-3265

BY:ROBERT N. GAWLAS/fe, ESQUIRE

162681 1

4 y ^



Docket Number

1-00970069

CDcn

r_o_o

"1!■■J

-J

FAIRVIEW TOWNSHIP’S EXHIBIT LIST ^

FAIRVIEW TOWNSHIP may introduce any or all of the documents jset fo^th below.n,

FAIRVIEW TOWNSHIP does not waive, and specifically reserves, the right to offer additional

exhibits which may be necessary to respond to issues raised by the other parties or the Commission

or which may arise during the course of these proceedings.

ExhibitNo.

Description of Object or Item Identified Moved Admitted

1. Fairview Township Zoning Map, showing location of Mary StreetBridge

la. Enlarged Section of FairviewTownship Zoning Map, showing location of Mary Street Bridge

2. Agreement dated September 6, 1983 by and between Mountaintop HoseCo. No. 1 and Township of Fairview, recorded at Book 2111, beginning at Page 443

3. Weekday Trip Generation calculations re: Mary Street Bridge

r\

162587 1

APR 06 1998

DOCUMENTFOLDER

1

ExhibitNo.


4. March 11, 1998 letter from David P. Hourigan, President, MountaintopHose Company No. 1

5. March 17,1998 letter from RobertD. Coleman, President and Nicholas Hollock, Jr., Secretary, Mountaintop Area Ambulance Association

6. March 16, 1998 letter from the Reverend Paul M. Mullen, Pastor ofSt. Jude’s Church and its mission church, St. Catherine’s

7. Letter from Gordon C. Snow, Superintendent of Crestwood School District

8. March 16, 1998 letter from Robert Schacht to Fairview Township Supervisors re: Mary Street Bridge

9. Petition of Fairview Township Residents regarding repair or replacement of Mary Street Bridge

10. February 11,1997 letter fromFairview Township Board of Supervisors to Adrian Merolli, Executive Director, Luzerne County Planning Commission

11. Luzerne County Transportation Highway & Bridge Project Listing as of March 12, 1998

12. April 24,1987 Order of Public Utility Commission at M-870135

13. August 20, 1987 Order of PublicUtility Commission at 1-870047

162587 1 2

ExhibitNo.


14. April 24,1989 RecommendedDecision of Administrative Law Judge Richard M. Lovenwirth at 1-870047

15. June 22, 1989 Order of Public Utility Commission at 1-870047, adopting Recommended Decision of Judge Lovenwirth

16. October 2, 1997 Order of PublicUtility Commission at 1-00970069

17. Inspection Report of Borton-Lawson Engineering re: Mary Street Bridge

18. Preliminary Cost Estimate prepared by Borton-Lawson Engineering for Mary Street Bridge replacement

19. Photographs of Mary Street Bridge/ railroad crossing area

20. Curriculum Vitae of Michael P. Hannagan, Structural Engineer/CADD

21. Curriculum Vitae of Thomas E. Lawson, P.E., P.L.S.

22. Curriculum Vitae of Scott R. Bush,P.E.

23. Curriculum Vitae of David R. Yefko, Civil Designer/CADD

24. Deed, dated August 19, 1996 between Consolidated Rail Corporation,Grantor, and Reading, Blue Mountain and Northern Railroad Company, Grantee, recorded in Luzeme County Deed Book No. 2587 beginning at, with Certification by FrankC. Castellino, Luzeme CountyRecorder of Deeds

162587 1 3

ExhibitNo.


25. Conrail bridge inspection reports dated May 10,1995 and March 27,1996



BY: \__________

MARSHALL S. JACOBSEN, ESQUIREAttorney LD. #01770ROBERT N. GAWLAS, JR., ESQUIREAttorney LD. #4660815 South Franklin StreetWilkes-Barre, PA 18711(717) 826-5600


162587 1 4

Pennsylvania -American Water Company


(717) 533-5000 • FAX (717) 531-3213

Susan D. Simms Associate Corporate Counsel April 1, 1998

VIA UPS OVERNIGHT DELIVERY

RECEIVEDHonorable Richard Lovenwirth Administrative Law Judge Pennsylvania Public Utility Commission Room 317 Scranton State Office Building

100 Lackawanna Avenue Scranton, Pennsylvania 18503

APR 7 1998

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 No. 1-00970069


I am forwarding a more legible copy ofPennsylvania-American Water Company’s Exhibit No. 1 which was attached to the prefiled written testimony of David L. Guskey sent to you on March 30,

As evidenced by the enclosed Certificate of Service, all parties to this proceeding have been duly served a copy of Pennsylvania-American Water Company’s Exhibit No. 1.

1998.

Respectfully,


Enclosure

c: James J. McNultyParties of Record



IT?

PAWC-Exhibit No. 1

1894

BEFORE THE PENNSYLVANIA PUBLIC UTILITY COMMISSION RECEIVED

APR 7 1998Investigation 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)

pa Public utiutv cg^s

•-R0TH0M0TARVS OFFIO1

Docket No. 1-00970069


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


BY FIRST CLASS MAIL



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

Reading, Blue Mountain & Northern Railroad Company

P.O. Box 218 Port Clinton, PA 19549

J.D. Cossell, Chief Engineer Conrail Corp.2001 Market St., P.O. Box 41412 Philadelphia, PA 19101-1412

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

R.K. Smith, Esquire Robert N. Gawlas, Jr., EsquirePA PUC Transportation & Safety Rail Division Fairview Township P.O. Box 3265 15 South Franklin StreetHarrisburg, PA 17105-3265 Wilkes-Barre, PA 18711

Dated this7th day of April, 1998.

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

(717) 533-5000

<

wuuu

LAW OFFICES

, Jenkins & Greenwald, l^p.

I 5 SOUTH FRANKLIN STREET JjVg_KES-BARRE, PENNSYLVANIA 187 1 1-0075

EUGENE ROTH DANIEL G. FLANNERY MARSHALL S. JACOBSON MURRAY UFBERG BRUCE C. ROSENTHAL DONALD H. BROBST 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 ** JOSEPH G. FERGUSON

GEORGE F. SHOVLIN it MARY GRIFFIN CUMMINGS MARY JO KISHEL PATRICIA ERMEL LAKHIA a MARK W. DRASNIN

LAWRENCE W. ROTH THOMAS B. CARPENTER ELIZABETH C. LEO ** NICHOLAS C. STROUMBAKIS

TRACY M. FALKOWTTZ tt MICHAEL K. DURICKO ERNEST A. SPOSTO. JR. THOMAS J. MacNEELY

Of Counsel:

HAROLD ROSENN Joseph j. SAvrrz


TELECOPIER

7 I 7-826-5640

Internet

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[email protected]


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t New Jersey tt Florida

April 7, 1998


J

Direct Dial

7 I 7-826-568 I

DIRECT FAX 7 I 7-83 I -72 I 5

Re: Investigation Upon the Commission^ 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


Enclosed for filing are an original and four (4) copies of the following: (1) Fairview Township’s Amended Exhibit List; and (2) a Certificate of Service. We have served copies of these documents upon all parties of record in the manner indicated on the Certificate of Service.

I would greatly appreciate your time-stamping and returning to me any unnecessary copies of the above documents. 4T“

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

Sincerely,

ROBERT N. GAWLAS, JR.RNG/laoEnclosurescc: Administrative Law Judge Richard Lovenwirth (w/enclosures)

All Parties of Record (w/enclosures)Marshall S. Jacobson, Esquire (w/enclosures)Alice Davis, Secretary, Fairview Township (w/enclosures)

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163583 1

LAW OFFICES

Rosenn Jenkins & Greenwai.d, l.L.P.I 5 SOUTH FRANKUN STREET

WILKES-BARRE, PENNSYLVANIA 1871 1-0075

EUGENE ROTH DANIEL G. FLANNERY MARSHALL S. JACOBSON MURRAY UFBERG BRUCE C. ROSENTHAL DONALD H. BROBST JOSEPH L. PERSICO HOWARD M. LEVINSON ALAN S. HOLLANDER GARRY S. TAROLI RICHARD A. RUSSO JAMES P. VALENTINE

MARK A. VAN LOON LEE S. PIATT ROBERTO. SCHAUS ROBERT N. GAWLAS, JR. STEVEN P. ROTH JAMES C. OSCHAL *t JOSEPH G. FERGUSON GEORGE F. SHOVLIN ** MARY GRIFFIN CUMMINGS MARY JO KISH EL PATRICIA ERMEL LAKHIA n

MARK W. DRASNIN

LAWRENCE W. ROTH THOMAS B. CARPENTER ELIZABETH C. LEO • • NICHOLAS C. STROUMBAKJS TRACY M. FALKOWTTZ MICHAEL K. DURICKO ERNEST A. SPOSTO, JR. THOMAS J. MACNEELY

Of Counsel:

HAROLD ROSENNJoseph j. savftz


Telecopier 7 I 7-826-5640

Internet

WWW.NEPALAW.COM

E-MAILrjgcoJRepalaw.com


* * New York Only n Washington, D.C.

t New Jersey Florida

April 6, 1998

Dmb^t Dial 7 I 7^6-566 I

disect FAX 7 I 7-0S I -72 I 5

All Parties and Counsel of Record

Re: Pennsylvania Public Utility CommissionDocket No. 1-00970069

Dear Counsel:

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Enclosed is Fairview Township’s Amended List of Exhibits, as well as a co^f of Fasrview Township Exhibit 26, a March 17,1998 letter from Edward Deets, Owner of Rinehirxrer Buslines,

Inc.

Also, we previously provided you with Fairview Township’s List of Proposed Witnesses. Please be advised that, at this time, Fairview Township anticipates offering the testimony of the following witnesses: Hany R. Zearfoss, Chairman of Fairview Township Supervisors; Leatha Buff, Director of Transportation for the Crestwood School District; Joseph Intelicato, Chief of Police, Fairview Township; Peter Kohl, Chief, Mountaintop Hose Co. No. 1; Nicholas Hollock, Jr. of the Mountaintop Area Ambulance Association; either Michael P. Hannagan or Scott R. Bush, of Borton- Lawson Engineering, Inc; and Donna Engel. Notwithstanding, Fairview Township does not waive, and specifically reserves, the right to call any of the witnesses it has identified.

Please be further advised that Reverend Paul M. Mullen, who had been identified to testify with regard to the benefit to St. Catherine’s Church of the existence of an open above-grade crossing, will be unavailable to testify. However, Nicholas Hollock, Jr., already identified with regard to the Mountaintop Area Ambulance Association, will testify with regard to St. Catherine’s Church, as he has been the caretaker for the church for the past thirty (30) years.

163545 i

Rosenn, Jenkins & Greenwald, L.L.P.

All Parties and Counsel of Record April 6, 1998 Page 2

Thank you for your attention to this matter. If you should have any questions, of course, please do not hesitate to contact me at your convenience.

Sincerely,

ROBERT N. GAWLAS, JR.

RNG/laoEnclosures

cc: Administrative Law Judge Richard Lovenwirth (w/enclosures)James-J. McNulty, Secretary, Pennsylvania-Public Utility Commissidh (w/enclosures) Marshall S. Jacobson, Esquire (w/enclosures)Alice Davis, Secretary, Fairview Township (w/enclosures)

163545 i


kO

roInvestigation 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

FAIRVIEW TOWNSHIP may introduce any or all of the documents set f<$th below.

FAIRVIEW TOWNSHIP does not waive, and specifically reserves, the right to offer additional

exhibits which may be necessary to respond to issues raised by the other parties or the Commission

or which may arise during the course of these proceedings.

Docket Number

1-00970069

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."-’/'llMENDEDEXHIBIT LIST

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ExhibitNo.


1. Fairview Township Zoning Map, showing location of Mary StreetBridge

la. Enlarged Section of FairviewTownship Zoning Map, showing location of Mary Street Bridge

2. Agreement dated September 6,1983 by and between Mountaintop HoseCo. No. 1 and Township of Fairview, recorded at Book 2111, beginning at Page 443

3. Weekday Trip Generation calculations re: Mary Street Bridge

163533 1

ExhibitNo.


4. March 11,1998 letter from David P. Hourigan, President, MountaintopHose Company No. 1

5. March 17,1998 letter from Robert D. Coleman, President and Nicholas Bollock, Jr., Secretary, Mountaintop Area Ambulance Association

6. March 16,1998 letter from the Reverend Paul M. Mullen, Pastor ofSt. Jude’s Church and its mission church, St. Catherine’s

7. Letter from Gordon C. Snow, Superintendent of Crestwood School District

8. March 16, 1998 letter from Robert Schacht to Fairview Township Supervisors re: Mary Street Bridge

9. Petition of Fairview Township Residents regarding repair or replacement of Mary Street Bridge

10. February 11, 1997 letter fromFairview Township Board of Supervisors to Adrian Merolli, Executive Director, Luzerne County Planning Commission

11. Luzerne County Transportation Highway & Bridge Project Listing as of March 12, 1998

12. April 24, 1987 Order of Public Utility Commission at M-870135

13. August 20, 1987 Order of PublicUtility Commission at 1-870047

163533 1 2

ExhibitNo.


14. April 24,1989 RecommendedDecision of Administrative Law Judge Richard M. Lovenwirth at 1-870047

15. June 22, 1989 Order of Public Utility Commission at 1-870047, adopting Recommended Decision of Judge Lovenwirth

16. October 2, 1997 Order of PublicUtility Commission at 1-00970069

17. Inspection Report of Borton-Lawson Engineering re: Mary Street Bridge

18. Preliminary Cost Estimate prepared by Borton-Lawson Engineering for Mary Street Bridge replacement

19. Photographs of Mary Street Bridge/ railroad crossing area

20. Curriculum Vitae of Michael P. Hannagan, Structural Engineer/CADD

21. Curriculum Vitae of Thomas E. Lawson, P.E., P.L.S.

22. Curriculum Vitae of Scott R. Bush,P.E.

23. Curriculum Vitae of David R. Yefko, Civil Designer/CADD

24. Deed, dated August 19,1996 between Consolidated Rail Corporation,Grantor, and Reading, Blue Mountain and Northern Railroad Company, Grantee, recorded in Luzerne County Deed Book No. 2587 beginning atPage 45, with Certification by FrankC. Castellino, Luzerne CountyRecorder of Deeds

163533 1 3

ExhibitNo.


25. Conrail bridge inspection reports dated May 10,1995 and March 27,1996

26. March 17,1998 letter from Edward Deets, Owner, Rinehimer Bus Lines,

Inc.



BY: _________MARSHALL S. JACOBSaNJESQUIREAttorney I.D. #01770ROBERT N. GAWLAS, JR., ESQUIREAttorney I.D. #4660815 South Franklin StreetWilkes-Barre, PA 18711(717) 826-5600


163533 1 4


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


I, ROBERT N. GAWLAS, JR., ESQUIRE, do hereby certify that I have served true and

correct copies of Fairview Township’s Amended Exhibit List, with Exhibit 26, upon the parties

listed below by First Class Mail, postage prepaid, this 6th day of March, 1998.



Jeffrey H. Sunday, Esquire PG Energy, Inc.Wilkes-Barre Center 39 Public Square Wilkes-Barre, PA 18711-0601 -n

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163551 l

Susan D. Simms, EsquireAssociate Corporate CounselPennsylvania-American Water Company800 West Hershey Park DriveP.O. Box 888Hershey, PA 17033-0888

Benjamin C. Dunlap, Jr., Esquire Nauman, Smith, Schissler and Hall 200 North Third Street 18th Floor P.O. Box 840Harrisburg, PA 17108-0840 Counsel for Conrail Corp.


David Salapa, EsquirePA PUC Trans & Safety Rail DivisionP.O. Box 3265Harrisburg, PA 17105-3265

BY:'trUJr !\ . A

ROBERT N. GAWLAS, jf$ ESQUIRE

163551 1

SPENCER G- NAUMAN, JR.

J. STEPHEN FEINOUR

CRAIG J. STAUOENMAIER

BENJAMIN C. DUNLAP. JR.

DENNIS E. BOYLE

- \ lA "Law Offices • j IQ) T/T

Naumakt, Smith, Shxsslew & FLajli*

is™ Floor ' LJ U _AhJ

Aj/rJ200 North Third Street

P. O. Box 8-40

Harrisburg, Pennsylvania 17108-0840

Telephone

(717) 236-3010

T ELEFAX

(717) 234-I92S

COUNSEL

DAVID C. EATON

JOHN C. SULLIVAN

DIRECT E-MAIL ADDRESS

NSSHOREDROSE.NET

April?, 1998

HAND DELIVERED

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

RE: Investigation upon the Commission’s own motion to determine thecondition, disposition, and responsibility for maintenance of the existing crossing structure carrying Mary Street (T-439) above-the-grade track of the Reading, Blue Mountain and Northern Railroad Company in Fairview Township, Luzerne County (AAR 361 417 S) at Docket No. I-00970069 Conrail No. MPIC-170; Our File No. 13233

Dear Sir:

I enclose an original and three (3) copies each of the Entry of Appearance of Benjamin C. Dunlap, Jr., Esquire on behalf of Consolidated Rail Corporation for filing in the above matter. In accordance with the accompanying Certificate of Service we have provided copies of the Entry of Appearance to all active parties of record.

Please timestamp the additional copy of the Entry of Appearance and return to our messenger.

/bmdEnclosurescc: All Parties of Record

ALJ Richard Lovenwirth Scott K. Wasserkrug, Esquire Mark Sawyer

Sincerely yours, DOCKETED

APR 09 1998Barbara Drake Secretary toBenjamin C. Dunlap, Jr., Egguire,.0

?

/IBEFORE THE

PENNSYLVANIA PUBLIC UTILITY COMMISSION

Investigation upon the Commission’s :own motion to determine the condition, :disposition, and responsibility for : Docket Numbermaintenance of the existing crossingstructure carrying Mary Street (T-439) :above-the-grade of the track of the : 1-00970069Reading, Blue Mountain and Northern :Railroad Company in Fairview :Township, Luzerne County :(AAR 361 417 S) :

- '1

PRAECIPE FOR ENTRY OF APPEARANCE

Please enter the appearance of the undersigned as counsel for Consolidated Rail Corporation

in regard to the above-captioned proceeding.

NAUMAN, SMITH, SHISSLER & HALL

Date: April 7,1998

By % c.Benjamin C. Dunlap, Jr., Esquire Supreme Court I.D. #66283

200 North Third Street, 18th Floor

P. O. Box 840 Harrisburg, PA 17108-0840 717-236-3010 Attorney for Conrail

DO n j/j> rs

APR 09 1998

0\/ I

BEFORE THE i .PENNSYLVANIA PUBLIC UTILITY COMIvhsSie 15

Unn

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

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I hereby certify that I served one (1) copy of the Entry of Appearance on behalf of

Consolidated Rail Corporation in the above action, this day by depositing the same in the United

States mail, postage prepaid, in Harrisburg, Pennsylvania, addressed to:

The Honorable Richard Lovenwirth Scranton State Office Building, Room 317 100 Lackawanna Avenue Scranton, PA 18503

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

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

R.K. Smith, EsquirePA PUC Transportation & SafetyRail DivisionP.O. Box 3265Harrisburg, PA 17105-3265

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

Eric M. Hocky, Esquire Gollatz, Griffin & Ewing, P.C. 213 West Miner Street P.O. Box 796 Chester, PA 19381-0796


Susan D. Simms, Esquire Pennsylvania-American Water Company 800 West Hershey Park Drive P.O. Box 888 Hershey, PA 17033-0888

^XiaJUBarbara Drake, Secretary to Benjamin C. Dunlap, Jr., Esquire

Dated: April 7, 1998

APPEARANCE SHEET

Docket No. 1-00970069

CaseName

Investigation Upon The Commission's Own Motion

Location

Date

ALJ

ReportingFirm

Scranton

4-14-1998

Richard M. Lovenwirth

(-rPiOq ^ f QcTVt

cNAMES, ADDRESSES AND

DOCKETEAPR 27 199f

OCUMENJmr

ALJ HEARING REPORT

CHECK THOSE BLOCKS WHICH APPLY:

Prehearing held.

Hearing held

Testimony taken

Transcript due

Hearing concluded

Further hearing needed

Estimated add'l days

RECORD CLOSED YES NO >

Briefs to be Filed

BENCH DECISION

DREMARKS:

DATE

DATE

ES NO

TYES

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VOCD

zo'r~-C'go: •

_£2_ •= i^ CD

E NUMBERS OF PARTIES OR COUNSELLOR RECORD PLEASE PRINT CLEARLY m

INCOMPLETE INFORMATION MAY RESULT IN DELAY OF PROCESS

NAME and TELEPHONE NUMBER ADDRESS APPEARING FOR

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Telephone No.^^ City r+ Zip FE-Ty200 Vb^et CcUq

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Jeffery H. SundayHimw

June 5, 1998

Pennsylvania Public Utility Commission New Filing Section

P.0. Box 3265Harrisburg, PA 17105-3265

In Re: Investigation - Fairview TownshipDocket Number 1-00970069

Dear Sir/Madame:

Enclosed please find the original and nine (9) copies of the Initial Brief of PG Energy Inc. in the above matter.

Sincerely,

JHS:dmk

cc: David Salapa, EsquireSusan Simms, Esquire Jason D. sharp, Esquire Robert N. Gawlas, Jr., Esquire Eric Hocky, Esquire Benjamin C. Dunlap, Jr., Esquire ALJ Richard M. Lovenwirth

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One PEI Center

Wilkes-Barre, PA 18711-0601

Direct Dial: (717)829-8824

Fax: (717)829-8652

/TjyirrCOMMONWEALTH OF PENNSYL\^4 jj


! ,

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

Docket Number

1-00970069

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INITIAL BRIEF OF PG ENERGY INC.

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JUN 09 1998 ^

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PG ENERGY INC.

BY: £2^^

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Jeffery H. Sunday, Esquire PG Energy Inc.One PEI Center Wilkes-Barre, PA 18711 (717) 829-8824

Counsel for PG Energy Inc.

Dated: /??£

TABLE OF CONTENTS

Page

Statement of the Case..................................................................................... 1

Statement of the Questions Involved........................................................... 3

Impartial Summary of Relevant Testimony................................................ 4

Proposed Findings of Facts............................................................................ 12

Summary of Argument.................................................................................. 16

Argument......................................................................................................... 17

Proposed Conclusions of Law...................................................................... 25

Proposed Ordering Paragraphs 26

STATEMENT OF THE CASE

On October 6, 1997 the Pennsylvania Public Utility Commission, upon its own

motion, issued an order to determine the condition, disposition and responsibility for

maintenance of the existing crossing structure carrying Mary Street above the grade

of the track of the Reading, Blue Mountain and Northern Railroad Company in

Fairview Township, Luzerne County. Previous to this order, by letter dated June 12,

1997, Fairview Township notified the Commission that the Mary Street bridge was

closed on February 3, 1997 based upon the recommendation of the Township

Engineer after an inspection was concluded. This bridge was previously posted for a

seven ton limit by a Commission order dated June 26, 1989 which directed the then

operating railroad company, Consolidated Rail Corporation, to maintain its complete

substructure or superstructure of the crossing so that the structure may continue to

safely carry the seven ton load level. A field investigation and conference was held

at the site of the Mary Street bridge on July 3, 1997 which was attended by

representatives of the Reading, Blue Mountain and Northern Railroad Company,

Fairview Township and PennDot. However, no representative of Luzerne County

attended the field conference. All parties present at the field conference agreed that

the bridge should be closed, but no party acknowledged any responsibility for

maintenance of the structure. No party was aware of any proposed project for repairs

1

or improvements to the structure. On July 18, 1997 the Commission affirmed the

action taken by Fairview Township in closing the bridge and initiated an

investigation to determine the condition of the bridge, the future disposition of it and

to determine the party or parties to be responsible for the rehabilitation of and future

maintenance of the bridge. Said order named the parties to the proceeding and the

order directed Fairview Township, at its initial cost and expense, to maintain

barricades at each end of the bridge to effectively close it to vehicular and pedestrian

traffic. Fairview Township was ordered, at its initial cost and expense, to furnish all

material and do all work necessary to establish, mark and maintain a suitable detour

route for all vehicles and furthermore, Fairview Township was required to furnish all

material and do all work necessary to install and maintain appropriate signs at each

adjacent public intersection with information indicating that the Mary Street bridge

was closed.

The order also stated that matters at miscellaneous docket number M-

00970934 be incorporated into this proceeding and that the M-00970934 proceeding

be marked closed and that an initial hearing be held. Said initial hearing was held on

April 14, 1998 at the Scranton State Office Building.

2

STATEMENT OF THE QUESTIONS INVOLVED

1. Should a fixed utility bear any costs, relocation or otherwise, relating to the

maintenance and/or reconstruction of an above-grade crossing, which it does not

own, and whose ratepayers would not receive any benefit from such maintenance

and/or reconstruction?

Suggested Answer: No.

3

IMPARTIAL SUMMARY OF RELEVANT TESTIMONY

John Watters testified he is Senior Vice President of Corporate Development

for Reading, Blue Mountain and Northern Railroad Company (Tr. 26). He stated

that Reading, Blue Mountain and Northern Railroad Company ("RBMN") does not

benefit from the overhead roadway crossing at this location. See Blue Mountain

Statement No. 1. RBMN will not agree to do any work and it is RBMN's opinion

that costs should be borne by the Township, County or PennDot if maintenance work

is undertaken as part of the "bridge bill". See Blue Mountain Statement No. 1.

Mr. Watters could not say that there is not a chance that parts of the abutments

from the crossing would come down on the track. (Tr. 31). He stated that the

chances of a train/vehicle collision are greater at an at-grade crossing than a separate

bridge crossing. (Tr. 40). RBMN has done nothing to comply with the obligations

imposed by the Commission's 1987 and 1989 orders. (Tr. 43). RBMN is paid

money by D&H Railroad for use of the line. (Tr. 43).

Tom Sawyer is principal engineer of public improvements for Conrail. (Tr.

52). He stated that Conrail has sold the line and the duties and responsibilities with

regard to the crossing should be conveyed and/or assumed by the parties that benefit

from the bridge. (Tr. 56). Conrail is not agreeable to assume any maintenance costs

4

with regard to the Mary Street bridge. (Tr. 65). He stated Conrail no longer has any

interest or benefit on the rail line or the crossing in question. (Tr. 65).

Harry Zearfoss is Chairman of the Board of Supervisors of Fairview

Township. (Tr. 90). Mr. Zearfoss testified that the Mary Street bridge was closed in

February, 1997 because Fairview Township's engineering firm gave a report that the

bridge was unsafe for vehicle traffic. (Tr. 96). He testified Routes 309 and 437 are

state highways. (Tr. 99). There currently is no other access to the Solomon Gap

section of Fairview Township other than by turning onto Lehigh Street from Route

437 and Fairview Township is very concerned because of the safety factors that are

involved. (Tr. 101). He further testified that the Mary Street bridge has moved up

on the county's priority list to be repaired and is currently number 11 on the list in

priority. Furthermore, he stated Fairview Township does not have the financial

ability or money to replace the Mary Street bridge. (Tr. 103).

Zearfoss testified that Fairview Township will agree to perform the actual

work and assume the costs for any repairs to the crossing as stated in the 1989 order.

He also stated the Township contends that the railroad should be required to perform

the repair to the bridge and assume all costs because the railroad owns the bridge.

(Tr. 104).

5

Fairview Township spends approximately $4,000 to $5,000 a year to fulfill its

obligation under the 1989 order and the Township will agree to assume maintenance

work and costs pursuant to the 1989 order. However, the railroad should be

responsible for other maintenance or repair work. (Tr. 106).

There are four businesses located in the Solomon Gap section. (Tr. 114).

Previously when repairs were made to the Mary Street bridge, Conrail made them.

(Tr. 122).

Michael Hannigan stated that he works for Borton Lawson Engineers and he is

a structural engineer. (Tr. 128, 129). Borton Lawson Engineers was retained by

Fairview Township to perform certain services with regard to the Mary Street bridge,

including an inspection of said bridge. (Tr. 131). During an April, 1994 inspection,

he testified that the structure did not meet any geometric or safety requirements that

are in place today for bridge standards. Also, there was some deterioration of the

steel superstructure, the wooden deck, and the stone masonry abutments, some of the

joints were deteriorating also. (Tr. 132). The May 1995 inspection basically had the

same findings with the exception of the east abutment where there was a significant

amount of loss of material in the masonry joints. (Tr. 134). The gaps forming in the

joints created a dangerous situation and if the masonry moves and fails, then that

comer of the bridge will fail and drop off. (Tr. 134).

6

There are utilities connected to the bridge and if the water and gas lines are

connected together in any manner and the water line started to fall, it could pull the

gas line with it. (Tr. 146).

In order to reopen the structure, stone masonry abutments must be repaired.

An in-depth rating analysis of the truss and in-depth rating analysis would have to be

conducted to determine the safe load carrying capacity. The rough estimate of costs

would be approximately $20,000 to perform such work and the plans and

specifications would cost another $3,000, plus or minus. (Tr. 147). If said work was

done, another 2 to 3, 2 to 5 years might be gained out of the structure. (Tr. 149).

However, eventually the Mary Street bridge will have to be replaced. (Tr. 150). The

estimate to replace the Mary Street bridge is $410,000 as of March 26, 1998. (Tr.

151).

The Mary Street bridge is currently on the bridge bill but not on PennDofs 12

year plan. The first step is to get on a local Luzerne County Planning Commission

priority ranking for bridge and roadway projects. Once recommendations are made

to PennDot, it would be placed on the 12 year plan. (Tr. 154). Hannigan stated that

the Mary Street bridge is currently ranked L-l 1, with a ranking of number 11 on the

priority listing for complete replacement set out by the Luzerne County Planning

Commission. However, there is no guaranty that any bridge bill funding will

7

become available to Fairview Township for the repair or replacement of the Mary

Street bridge. (Tr. 155). He did not believe that the Mary Street bridge, without any

traffic running over it, would fall down under its own weight. (Tr. 166). Hannigan

further testified that he did not make any determination with regard to the integrity of

the utility facilities that existed on the Mary Street bridge. (Tr. 173). A load rating

analysis should be done first before any other work is undertaken with regard to the

bridge. (Tr. 177). He testified that the bridge abutment could fall down under its

own weight in future years. (Tr. 178).

Joseph Intelicato testified that he is the Police Chief in Fairview Township.

(Tr. 180). He was concerned about a number of safety issues that have arisen since

the bridge closing. (Tr. 180). Due to the closing of the Mary Street Bridge, there is

much congestion and it has caused manpower problems for the Fairview Township

police force. He believes the bridge should be reopened. (Tr. 183).

Peter Kohl testified that he is the Fire Chief for Fairview Township. (Tr. 193).

He stated that if the intersection of Lehigh Street and Route 437 were blocked by a

car accident or some other cause, the Hose Company would not have access to the

Solomon Gap section of Fairview Township. (Tr. 196).

Leatha Buff stated that she is the Director of Transportation for the Crestwood

School District, which includes Fairview Township. (Tr. 202). She testified that the

8

current situation dealing with the closing of Mary Street bridge causes concern to the

Crestwood School District because when a school bus turns onto 437 the curve is

very sharp, steep and icy in bad weather. (Tr. 205).

Nicholas Hollock testified that he is the Director and Secretary of the

Mountaintop Area Community Ambulance Association. (Tr. 211). He testified that

it is impossible for the ambulance association to make the curve from 437 turning

onto Lehigh Street. (Tr. 212). Also, he stated there is no access to Solomon Gap if

the intersection of Lehigh Street and 437 were blocked. (Tr. 213).

Joseph Strok testified that he is employed by the Pennsylvania Department of

Transportation as a Grade Crossing Engineer. (Tr. 222). He stated that the

replacement or repair of the Mary Street structure is currently on Bridge Bill 2. (Tr.

224). He also stated that Bridge Bill funds are not currently available for the repair

or replacement of the Mary Street Bridge. The repair or replacement of the Mary

Street Bridge is currently not on PennDot's 12 year plan. (Tr. 228). Mary Street is

not a state road. (Tr. 233). The bridge bill authorizes use of state funds for bridge

replacement as well as federal funds. (Tr. 235).

David Guskey stated that he is employed by Pennsylvania-American Water

Company as Operations Manager. (Tr. 238). He testified that PAWC maintains a 6"

steel cast iron water main attached to the bridge. See Pennsylvania-American

9

• •Exhibit 1. He stated that any alteration that would leave the support structure as is

would least effect PAWC's facilities that are currently in place. If the alteration

required the removal of the pipe or sections of the pipe, it would result in the

interruption of water service to customers in the area. There are no reasons why

PAWC would desire to relocate its facilities in the area and currently, the 6" water

main is adequate for water distribution purposes in the area. Finally, the ratepayers

of PAWC would receive no benefit as the result of any relocation of the water mains

or connecting facilities. See Pennsylvania-American Exhibit 1.

Walter Blejwas testified that he employed by PG Energy Inc. as a Division

Engineer, Central Division. (Tr. 245). PG Energy has a 2” steel gas main that runs

from Route 309 to the Lehigh Street area and said facility is attached to the Mary

Street bridge. (Tr. 247). The removal of the crossing would result in the alteration

or relocation of the PG Energy facility. (Tr. 247). Any alteration of the crossing

would result in the interruption of gas service to PG Energy gas customers in the

area. (Tr. 248). PG Energy would not bear any costs with regard to any relocation

of its existing facilities. (Tr. 248). PG Energy does not desire to relocate any of its

facilities in the Mary Street bridge area at this time. (Tr. 248). PG Energy’s

ratepayers would not receive any benefit as the result of any relocation of PG

Energy's facilities in the area of this crossing. (Tr. 249). PG Energy prefers that the

10

crossing remain in tact since its present facilities are attached to that structure. (Tr.

252). PG Energy's facility would not stand freely by itself. (Tr. 253). PG Energy is

in negotiations with regard to a lease for its facilities found on Mary Street bridge.

(Tr. 254). PG Energy's gas main has been there since 1968. (Tr. 254).

Ronald J. Holl testified that he is employed by the Pennsylvania Public Utility

Commission, Bureau of Transportation and Safety, Rail Safety Division, as a Civil

Engineer Consultant. (Tr. 255). He testified that if Fairview Township has the

desire to have the Mary Street bridge crossing remain, it should start proceeding with

plan preparation to have the bridge replaced. (Tr. 261). He further stated that if the

bridge bill funding is utilized, it would be state funds not federal funds, used for the

crossing improvement. (Tr. 267). Finally, without a load carrying capacity analysis,

there is no way of knowing what the present capacity of the Mary Street bridge is.

(Tr. 270).

11

PROPOSED FINDINGS OF FACTS

1. The chances of a train/vehicle collision are greater at an at grade

crossing than a separate bridge crossing. (Tr. 40).

2. The Reading, Blue Mountain and Northern Railroad Company

("RBMN") is paid money by D&H Railroad for use of the line under the Mary Street

bridge. (Tr. 43).

3. Routes 309 and 437 are state highways. (Tr. 99).

4. The Mary Street bridge is currently number 11 on a list of facilities to be

repaired in Luzerne County by the Luzerne County Planning Commission. (Tr. 103).

5. RBMN owns the Mary Street bridge. (Tr. 104).

6. There are four businesses located in the Solomon Gap section. (Tr.

114).

7. Previously when repairs were made to the Mary Street bridge, Conrail,

which owned Mary Street bridge at the time, made said repairs. (Tr. 122).

8. There are gaps forming in the joints of the Mary Street bridge which

created a dangerous situation and should the masonry move and fail, then that comer

of the bridge will fall and drop off onto the tracks beneath. (Tr. 134).

9. There is a water main and a gas main attached to the Mary Street bridge.

(Tr. 146).

12

10. The estimate to replace the Mary Street bridge is $410,000. (Tr. 151).

11. The Mary Street bridge is currently on the Bridge Bill 2. (Tr. 154).

12. Due to the closing of the Mary Street Bridge, there is much congestion

which has caused manpower problems for the Fairview Township police force. (Tr.

183).

13. If the intersection of Lehigh Street and Route 437 were blocked by a car

accident or some other cause, the Fairview Township Hose Company would not have

access to the Solomon Gap section of Fairview Township. (Tr. 196).

14. The fact that Mary Street bridge is closed causes concern to the

Crestwood School District because when the school bus turns onto 437 the curve is

very sharp, steep and icy in bad weather. (Tr. 205).

15. It is impossible for the ambulance association to make the curve from

437 turning onto Lehigh Street. (Tr. 212).

16. Pennsylvania-American Water Company maintains a 6" steel cast iron

water main attached to the bridge. See Pennsylvania-American Exhibit 1.

17. There is no reason why Pennsylvania-American Water Company would

desire to relocate its facilities in the area and currently, the 6” water main is adequate

for water distribution purposes in the area. See Pennsylvania-American Exhibit 1.

13

18. The ratepayers of Pennsylvania-American Water Company would

receive no benefit as the result of any relocation of the water mains or connecting

facilities. See Pennsylvania-American Exhibit 1.

19. PG Energy Inc. has a 2" steel gas main that runs from Route 309 to the

Lehigh Street area and said facility is attached to the Mary Street bridge. (Tr. 247).

20. Any alteration of the crossing would result in the interruption of gas

service to PG Energy gas customers in the area. (Tr. 248).

21. PG Energy does not desire to relocate any of its facilities in the Mary

Street bridge area at this time. (Tr. 248).

22. PG Energy’s ratepayers would not receive any benefit as the result of

any relocation of PG Energy's facilities in the area of the Mary Street bridge. (Tr.

249).

23. PG Energy's gas main has been attached to the Mary Street bridge since

1968. (Tr. 254).

24. Without a load carrying capacity analysis, there is no way of knowing

what the present capacity of the Mary Street bridge is. (Tr. 270).

25. There is no evidence of record which would permit the finding that

either PG Energy Inc. or its customers, the ratepayers of the gas system, would

14

receive any benefit from the maintenance or reconstruction of the Mary Street

bridge.

15

SUMMARY OF ARGUMENT

PG Energy Inc. would receive no benefit relating to the maintenance and/or

reconstruction of the Mary Street bridge. Other parties to this proceeding would

receive major benefits and accordingly, the cost for such changes should be

attributed to these parties. Any allocation of costs assigned to PG Energy for such

maintenance and reconstruction would not be just and reasonable because benefit is

the issue and there is no evidence on the record attributing a benefit to PG Energy or

its ratepayers. The allocation of costs in a proceeding such as this must accrue to the

parties to whom the benefits vest. Accordingly, PG Energy Inc. should not be

responsible for maintenance of the Mary Street bridge nor should PG Energy Inc.

bear any costs relating to the reconstruction of said crossing.

16

ARGUMENT

The Pennsylvania Public Utility Commission ("Commission”) has jurisdiction

over all rail crossings and the allocation of costs to various parties, including

municipalities. The Commission has power to regulate railroad-highway crossings

pursuant to Sections 2702 and 2704 of the Public Utility Code, 66 Pa. C.S.A.

§§2702, 2704. The rationale underlying the Commonwealth's grant of such broad

powers to the Commission is to keep the rail-highway crossings from becoming

unsafe for the public. Southeastern Pennsylvania Transportation Authority v. Pa.

P.U.C.. 140 Pa. Cmwlth. 270, 592 A.2d 797 (1991). Jurisdiction of the Commission

attaches whether the highway is "at grade, above grade or between grade" at the

same or different levels. An above grade crossing, such as the crossing at bar, exists

where the highway is carried over and above the grade of the railroad by a bridge.

In allocating costs regarding construction and maintenance of rail-highway

crossings, the Commission is not limited to any fixed rule but may take all relevant

factors into consideration, with the only requirement being that the resulting order be

just and reasonable. Municipality of Monroeville v. Pa. P.U.C.. 143 Pa. Cmwlth.

668, 600 A.2d 655 (1991). Factors which have been considered by the Commission

include prior ownership and maintenance responsibility, the relative benefits which

will accrue to the interested parties as a result of the crossing, availability of state or

17

federal funds, deferred maintenance, origin and destination of bridge users, and

ownership of the tracks as well as the general equities of each particular case. Re:

Pennsylvania Department of Transportation. 68 Pa. P.U.C. 116, 127 (1988).

Application of the City of Wilkes-Barre, docket number A-101606 (order

entered April 9, 1991) serves as a further guide for the Commission's use in

apportioning costs in rail-highway crossing cases. This decision listed the following

cost allocation factors which may be considered, namely, (1) the benefits to the

utility and its ratepayers from the rail-highway crossing project, (2) the availability

of state or federal funding for the project, (3) the placement of costs upon the parties

responsible for the situation, and (4) the equities of a particular situation. This

decision acknowledged that various factors have been used by the Commission in

allocating costs, however, the Commission is not limited to any fixed rule, but may

consider any one or more of the above recited factors, depending upon the facts

peculiar to each case. See Green Township Board of Supervisors v. Pa. P.U.C.. 642

A.2d 541 (Pa. Cmwlth. 1994). In the case at bar, there is no evidence in the record

attributing a benefit to PG Energy or its ratepayers should its 2" steel gas main

attached to the Mary Street bridge be relocated. A new gas main, in and of itself, is

not a benefit where that construction is, from PG Energy's point of view,

unnecessary. (Tr. 248, 249). Furthermore, the mere replacement of a functional gas

18

line is not a material benefit when compared to the substantial and unquestioned

benefits accruing to the other parties in this matter.

In Delaware River Port Authority v. Pa. P.U.C.. 184 Pa. Super. 280, 133 A.2d

853 (1957), the superior court stated that where the abolition of a crossing is for the

sole benefit of one party, the fixed utility should not bear the cost. The cost for the

changes should be attributed to the party who benefits from the change and who

seeks the change stating "it would be most inequitable to put these costs, where they

ultimately would rest, upon the ratepayers..Id. at 287.

In the case at bar, other parties would receive major benefits with regard to the

maintenance and/or alteration of the Mary Street bridge. For example, the Reading,

Blue Mountain and Northern Railroad Company would operate more safely in that it

would have less risk of a train/vehicle collision, therefore a great benefit from

maintaining the Mary Street bridge accrues to the railroad. The Reading, Blue

Mountain and Northern Railroad Company is the successor to Conrail, which

previously had maintenance responsibility for the bridge. Also, the Reading, Blue

Mountain and Northern Railroad Company owns the Mary Street bridge. (Tr. 104).

Therefore, any improvement to the bridge is a great benefit to Reading, Blue

Mountain and Northern Railroad Company. Also, this railroad company benefits

greatly from the presence of the bridge in terms of safety and ease of operation, not

19

to mention the fact that RBMN is paid money by another railroad for use of the line.

(Tr. 43). Accordingly, RBMN should bear a substantial portion of the cost of

maintaining and repairing the structure.

Although the Mary Street bridge is not a state highway bridge, maintenance of

the bridge or the building of a new bridge would benefit the Commonwealth. The

Commonwealth would benefit from relief of traffic backup on Commonwealth

highways in and around the area of Mary Street bridge. See Commonwealth

Department of Transportation v. Pa. P.U.C.. 70 Pa. Cmwlth. 128 (1982). The

Commonwealth of Pennsylvania has a substantial interest in vehicular traffic routed

off of a state highway because the reduction of congestion results from the detours.

PennDot v. Pa. P.U.C.. 79 Pa. Cmwlth. 266 (1983) at 273, N. 10. A benefit accrues

to the citizens of the Commonwealth as a whole, and those of the concerned counties

and municipalities, resulting from reducing congestion and better traffic control,

especially on Commonwealth highways. PennDot v. Pa. P.U.C.. 79 Pa. Cmwlth. 266

(1983). Accordingly, the Pennsylvania Department of Transportation, the County of

Luzerne, and Fairview Township would benefit from the maintenance and/or

reconstruction of the Mary Street bridge.

With regard to prior ownership and maintenance responsibilities, it was held

that where a railroad's predecessor had ownership of the line and had maintenance

20

responsibility for a highway bridge over the tracks, the railroad remained liable for

the maintenance. See Consolidated Rail Corporation v. Pa. P.U.C.. 55 Pa. Cmwlth.

576, 423 A.2d 1108(1980).

It is also evident that the Township and County benefit from the Mary Street

bridge, since the bridge provides a convenient access for residents living in the

Solomon Gap section of Fairview Township. The residents and businesses located in

the Solomon Gap section of Fairview Township are tax payers in Fairview Township

and Luzerne County.

Contingent and speculative availability of bridge bill funding is a factor which

the Commission must consider in rail crossing proceedings. See Department of

Highway v. Pa. P.U.C., 185 Pa. Super. 418 (1958). There is a very good possibility

that since the Mary Street bridge is currently ranked L-l 1 on the priority listing for

complete replacement as fixed by the Luzerne County Planning Commission, there is

a good possibility that bridge bill funding will ultimately become available to

Fairview Township for the repair or replacement of the Mary Street bridge (even

though there is no guaranty that this will happen). (Tr. 155).

It can be seen that since all parties other than fixed utilities benefit from the

maintenance and/or reconstruction of the Mary Street bridge, any allocation of costs

assigned to fixed utilities for such maintenance and reconstruction would not be just

21

and reasonable because benefit is the issue. There is no evidence on the record

attributing a benefit to PG Energy Inc. or its ratepayers. Certainly, PG Energy does

not receive a material benefit when compared to the substantial and unquestioned

benefits accruing to other parties in this matter. The allocation of costs accrues to

the parties where the benefits vest. See Tarentum Borough v. Pa. P.U.C.. 171 Pa.

Super. 156, 90 A.2d 853 (1952).

In Delaware River Port Authority v. Pa. P.U.C.. 184 Pa. Super. 280, 133 A.2d

853 (1957), the Superior Court discussed its affirmation of the Commission’s order

to assess costs on the port authority and not the electric company involved. The

Superior Court cited the availability of funds to the Port Authority, the fact that the

Authority was the applicant who sought improvement for its own benefit, and

concluded as follows:

"No benefits, so far as disclosed by this record, will accrue Philadelphia Electric Company nor to the ratepayers from relocation of its transmission lines as ordered by the Authority. It would be most inequitable to put these costs, where they ultimately would rest, upon the ratepayers, the electric company...clearly the Commission cannot be charged with abusive discretion in allocating the electric company's relocation costs against the Authority in the present proceedings." (emphasis added). Id., 184 Pa. Super, at 287.

Do the ratepayers of a fixed utility receive a benefit where the non

transportation utility has occupied a right of way at no cost? In City of Scranton, 55

Pa. P.U.C. 737 (1982), the Commission decided that both Pennsylvania Gas and

22

Water Company and PP&L, fixed utilities, should be reimbursed at "sums of money

equal to 100% of the actual costs incurred in furnished materials in performing work

in accordance with paragraph 7 of the Opinion and Order." Paragraph 7 of the

Opinion was the provision which required Pennsylvania Gas and Water Company

and Pennsylvania Power & Light Company to do the work necessary to relocate their

facilities at their initial cost. The Commission's City of Scranton decision reversed

the ALJ's determination that PG&W and PP&L should bear the cost of relocation.

Specifically, the Commission, at page 740, stated as follows:

"Balancing the benefit to the ratepayers of a non transportation utility occupying the public right of way, or the facts that the project and the relocation of facilities of the non transportation is required solely to benefit the traveling public (N.T. 11, 56, 68); the facilities of PP&L to be relocated are relatively new, in good condition and are fully adequate for their present and intended future purposes; no expansion of PP&L's system will occur; and that the reliability and capability of the utility system will be the same before and after the bridge repairs.

Considering all of the factors enumerated, we are of the opinion that costs of relocating the facilities of a non transportation utility should be borne by the City of Scranton."

It is clear that the City of Scranton decision supports the conclusion that if no

benefit accrues to a fixed utility, no costs should be allocated to a utility for

maintenance and/or reconstruction. Here, PG Energy does not desire to relocate any

of its facilities in the Mary Street bridge area and PG Energy's ratepayers will not

receive any benefit as the result of any relocation of PG Energy's facilities in the area

23

of this crossing. Furthermore, PG Energy's gas main was placed at the Mary Street

bridge in 1968, which makes said facility relatively new. (Tr. 248, 249, 254).

In light of the above, based upon the equities of the case and the fact that PG

Energy Inc. receives no direct benefit, PG Energy Inc. should not be responsible for

maintenance of the Mary Street bridge nor should PG Energy Inc. bear any costs

relating to the reconstruction of said crossing.

24

PROPOSED CONCLUSIONS OF LAW

1. The Pennsylvania Public Utility Commission has jurisdiction over the

Mary Street bridge and any work involving its maintenance, alteration, relocation or

abolition. See 66 Pa. C.S.A. §2702(a).

2. Under the facts and circumstances of this case, it would be most

inequitable to place any costs, relating to maintenance of the Mary Street bridge or

relocation of PG Energy Inc.'s gas line upon PG Energy Inc. or its ratepayers.

Delaware River Port Authority v. Pa. P.U.C.. 184 Pa. Super. 280, 133 A.2d 853

(1957).

3. All costs allocated in this matter must be placed with parties other than

fixed utilities because benefits vest exclusively in these non fixed utility parties.

Tarentum Borough v. Pa. P.U.C.. 171 Pa. Super. 156, 90 A.2d 853 (1952).

25

PROPOSED ORDERING PARAGRAPHS

Accordingly, it is hereby Ordered:

1. That the Pennsylvania Public Utility Commission has jurisdiction over

the Mary Street bridge and any work involving its maintenance, alteration, relocation

or abolition.

2. That no costs, relocation or otherwise, shall be assigned to PG Energy

Inc. and furthermore, PG Energy Inc. shall not be responsible for maintaining the

Mary Street bridge in any manner.

26


I, Jeffery H. Sunday, Esquire, certify that I have served by First Class U.S.

Mail, the original and nine (9) copies of the Initial Brief upon the following on

^ u >ie f I*?*??' :---------- 1 7

Pennsylvania Public Utility Commission c/o New Filing Section, Prothonotary’s Office P.O. Box 3265 Harrisburg, PA 17105-3265

I hereby certify that I have served by First Class U.S. Mail, three copies of the

Initial Brief upon the following on Jvnr * flfT:

David Salapa, Esquire Pennsylvania Public Utility Commission Bureau of Transportation and Safety P.O. Box 3265 Harrisburg, PA 17105

Susan Simms, Esquire Pennsylvania-American Water Company 800 East Hershey Park Drive P.O. Box 888 Hershey, PA 17033-0888

Jason D. Sharp, Esquire Pennsylvania Department of Transportation 555 Walnut Street Forum PlazaHarrisburg, PA 17105-1900

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

Eric Hocky, EsquireReading, Blue Mountain and Northern Railroad Company 213 West Main Street P.O. Box 796Westchester, PA 19381-0796

Benjamin C. Dunlap, Jr., Esquire 200 North Third Street P.O. Box 840 Harrisburg, PA 17108

I hereby certify that I have served by First Class U.S. Mail, one copy of the

Initial Brief upon the following on i/un* r /<77 ?:

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

Jeffery H. Sunday, Esquire PG Energy Inc.One PEI Center Wilkes-Barre, PA 18711 (717) 829-8824

PG ENERGY INC.

Pennsylvania -American Water Company


(717) 533-5000 • FAX (717) 531-3213

cn££cocn


VTA UPS OVERNIGHT DELIVERY

Honorable Richard Lovenwirth Administrative Law Judge Pennsylvania Public Utility Commission Room 317 Scranton State Office Building 100 Lackawanna Avenue Scranton, Pennsylvania 18503

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 ofthe track of the Reading, Blue Mountain and Northern Railroad Company inFairview Township, Luzerne County (AAR 361 417 S). Docket No. 1-00970069 _________________


Pursuant to your May 11,1998 letter regarding the above-captioned case, please be advised that Pennsylvania-American Water Company does not intend to file a Main Brief in this proceeding; however, I reserve the right to file a Reply Brief.

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

June8, 1998

i ' ij CD

“O C_:ro—irro T :J *. ---m

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POm ro> cn

Respectfully,

SDS/dlj

Enclosure


c: Parties of RecordDedicated to Quality Water and Superior Service


IC^VI

COMMOWWEALTH OF PENNSYLVAfTTA PENNSYLVANIA PUBLIC UTILITY COMMISSION RO. BOX 3265, HARRISBURG, PA 17105-3265

5 I 780IN REPLY PLEASE

REFER TO OUR FILE

90JUH-9 flHIh 19

June 9, 1998 RECEIVED ETARY'S BUREAU

James J. McNulty, Secretary Pennsylvania Public Utility Commission P.O. BOX 3265 North Office Building Harrisburg, PA 17105-3265

re: Investigation upon the Commission'sown 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 No. 1-00970069


Enclosed herewith, please find the original and nine copies of the Pennsylvania Public Utility Commission, Bureau of Transportation and Safety's Main Brief in the above-captioned matter.

Copies have been served on the parties as stated on the Certificate of Service attached.

Very truly yours,

c .CL

David A. Salapa Assistant Counsel

Iu

r\

\

DW

nnUla

Enclosures


151781

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

BRIEF OF THE BUREAU OF TRANSPORTATION AND SAFETY OF THEPENNSYLVANIA PUBLIC UTILITY COMMISSION

David A. Salapa Assistant Counsel

P.0. Box 3265Harrisburg, PA 17105-3265 (717) 783-2840

Dated: June 9 1998

TABLE OF CITATIONS

CASES Page ts)

Countv of Chester v. Pa. P.U.C..47 Pa. Coitunw. Ct. 366, 408A.2d 552 (1979) 7

East Rockhill Township v. Pa. P.U.C..115 Pa. Commw. Ct. 228, 540A.2d 600 (1988) 7

Greene Two, v. Pa. P.U.C.. 668 A.2d615 (Pa. Commw. Ct. 1995) .................. 7, 13

Municipality of Monroeville v. Pa.P.U.C,. 143 Pa. Commw. Ct. 668,600 A.2d 655 (1991) 7

Pennsylvania Game Commission v. Pa.P.U.C.. 651 A.2d 596 (Pa. Commw.Ct. 1994) 6

SEPTA v. Pa. P.U.C.. 140 Pa. Commw.Ct. 270, 592 A.2d 797 (1991)alloc, denied 611 A.2d 714 (1992) .......... 6

TABLE OF CONTENTS

Page

PROCEDURAL HISTORY ...................................... 1

ISSUE PRESENTED ......................................... 3

SUMMARY OF ARGUMENT ..................................... 4

ARGUMENT:

I. THE COMMISSION SHOULD DIRECT A PARTY TO REPAIR AND MAINTAIN THE EXISTING STRUCTURE CARRYING MARY STREET OVER THE FACILITIES OF READING, BLUE MOUNTAIN AND NORTHERN RAILROAD COMPANY IN ORDER TO PREVENT ACCIDENTS ANDPROMOTE PUBLIC SAFETY .................... 6

II. THE COMMISSION SHOULD DIRECT A PARTY TO REPLACE THE STRUCTURE CARRYING MARY STREET OVER THE FACILITIES OF THE READING, BLUE MOUNTAIN AND NORTHERN RAILROAD COMPANY IN ORDER TO PREVENTACCIDENTS AND PROMOTE PUBLIC SAFETY ..... 12

CONCLUSION ............................................... 15

PROPOSED FINDINGS OF FACT .............................. 17

PROPOSED CONCLUSIONS OF LAW............................ 19

PROPOSED ORDERING PARAGRAPHS ........................... 20

PROCEDURAL HISTORY

This proceeding began when the Pennsylvania Public

Utility Commission (Commission) initiated an investigation upon

its own motion into the maintenance and disposition of the

highway bridge carrying Mary Street in Fairview Township, Luzerne

County over the facilities of the Reading, Blue Mountain and

Northern Railroad Company. The Commission initiated this

investigation by Order entered October 6, 1997 at Docket No. I-

00970069.

The October 6, 1997 Order stated that a previous

Commission Order entered on June 26, 1989 at Docket No. I-

00870047 directed that the Mary Street bridge be posted for a 7

ton load limit and that Consolidated Rail Corporation, then the

rail-line operator, maintain the substructure and superstructure

of the bridge. By letter dated June 12, 1997, Fairview Township

notified the Commission that the Mary Street bridge was closed to

vehicular traffic based on an inspection report prepared for

Fairview Township by its engineer. No concerned party would

acknowledge current responsibility for maintaining the structure.

The Commission's October 6, 1997 Order directed that

the Commission institute an investigation to determine the

disposition of the structure and assign future maintenance

responsibility. The Order also directed that the Reading, Blue

Mountain and Northern Railroad Company, Consolidated Rail

Corporation, Fairview Township, Luzerne County, Pennsylvania

1

Department of Transportation, Pennsylvania American Water

Company, and PG Energy, Inc. be made parties to the proceeding.

On April 14, 1998, Administrative Law Judge (ALJ)

Richard M. Lovenwirth conducted a hearing on this matter. By

letter dated May 11, 1998, ALJ Lovenwirth directed that the

parties file and serve main briefs within thirty days of the date

of the letter. This is the Bureau of Transportation and Safety's

main brief.

2

ISSUE PRESENTED

I. Should the Commission direct a party to repair and maintain

the existing structure carrying Mary Street over the

facilities of Reading, Blue Mountain and Northern Railroad

Company in order to prevent accidents and promote safety?

II. Should the Commission direct a party to replace the

structure carrying Mary Street over the facilities of

Reading, Blue Mountain and Northern Railroad Company in

order to prevent accidents and promote safety?

3

SUMMARY OF ARGUMENT

The evidence presented at the hearing in this

proceeding demonstrates that the bridge carrying Mary Street over

the facilities of Reading, Blue Mountain and Northern Railroad

Company is in need of repairs. Before the Commission orders any

repairs, it should ascertain whether the bridge is capable of

carrying vehicular traffic if those repairs are made. To that

end, the Commission should order a party to perform a load rating

analysis in order to ascertain whether the structure members are

capable of carrying vehicular loads. If the load rating analysis

reveals that the structural members are not capable of carrying

vehicular traffic, the bridge should remain closed. If the load

rating analysis indicates that the bridge can carry vehicular

loads, repairs should be made to the structure and the structure

reopened to vehicular traffic. In either event, the Commission

should assign maintenance and inspection responsibility to a

party in order to assure that the bridge is safe and does not

present a hazard to railroad operations.

The evidence presented at the hearing by Fairview

Township indicates that the Mary Street bridge is necessary to

serve the Solomon's Gap portion of Fairview Township as an

alternate access. The Commission should direct a party to

prepare plans for the replacement of the structure, direct the

party to submit the plans to the Commission for approval, then

4

direct the party to construct a new bridge. The Commission

should also assign future maintenance responsibility for the new

structure.

5

ARGUMENT

I. THE COMMISSION SHOULD DIRECT A PARTY TO REPAIR AND MAINTAIN THE EXISTING STRUCTURE CARRYING MARY STREET OVER THE FACILITIES OF READING, BLUE MOUNTAIN AND NORTHERN RAILROAD COMPANY IN ORDER TO PREVENT ACCIDENTS AND PROMOTE PUBLIC SAFETY.

The Commission has exclusive authority, pursuant to 66

Pa. C.S. §2702, to order the construction, reconstruction,

alteration, repair, protection, suspension or abolition of rail

highway crossings, as well as the exclusive authority to

determine and order which parties shall perform such work at the

crossing and which parties shall maintain the crossing in the

future, to prevent accidents and promote the safety of the

public. SEPTA v. Pa. P.U.C. 140 Pa. Comxnw. Ct. 270, 592 A.2d 797

(1991) alloc, denied 611 A.2d 714 (1992).

The Commission is empowered, pursuant to 66 Pa. C.S.

§2702(b), to determine and prescribe the manner in which such

crossings may be constructed, reconstructed, altered, repaired,

protected, suspended or abolished. The Commission is also

empowered, pursuant to 66 Pa. C.S. §2702(c), to order the

abolition of crossings upon such reasonable terms and conditions

as it prescribes. Pennsylvania Game Commission v. Pa. P.U.C..

651 A.2d 596 (Pa. Commw. Ct. 1994) alloc, denied 544 Pa. 649, 664

A.2d 977 (1995).

6

Additionally, the Commission, pursuant to 66 Pa. C.S.

§2704(a) has the exclusive authority to assess the costs of any

work it orders upon the concerned parties to this proceeding in

such proper proportions as the Commission may determine. The

Commission also determines what parties are concerned within the

meaning of 66 Pa. C.S. §§ 2704(a) and 2702(c). County of Chester

v. Pa. P.U.C.. 47 Pa. Commw. Ct. 366, 408 A.2d 552 (1979).

In apportioning costs in rail-highway crossing cases,

the Commission is not limited to any fixed rule but takes all

relevant factors into consideration, the only requirement being

that its order is just and reasonable. East Rockhill Township v.

Pa. P.U.C.. 115 Pa. Commw. Ct. 228, 540 A.2d 600 (1988);

Municipality of Monroeville v. Pa. P.U.C.. 143 Pa. Commw. Ct.

668, 600 A.2d 655 (1991); Greene Two, v. Pa. P.U.C.. 668 A.2d 615

(Pa. Commw. Ct. 1995).

Among the relevant factors which the Commonwealth Court

noted in the Green Township case as relevant are the following:

(1) which party built the crossing; (2) whether the roadway

existed before or after the construction of the crossing; (3)

relative benefit conferred on each party with the construction of

the crossing; (4) whether either party is responsible for the

deterioration of the crossing which has lead to the need for its

repair, replacement or removal; and (5) the relative benefit that

each party will receive from the repair, replacement or removal

of the crossing. While the Commission has considered these

7

factors to be relevant in the past, this in no way limits the

factors which the Commission can consider. Bell Atlantic - PA.

Inc, v. Pa. P.U.C., 672 A.2d 352 (Pa. Commw. Ct. 1996).

Among the factors which the Commission has viewed in

past proceedings as relevant to allocating the costs of utility

relocation, the Commonwealth Court in the Bell Atlantic case

noted the following factors: (1) the benefit received by the

rate payers of a particular utility; (2) availability of state

and/or federal funding for a project; (3) the placing of the

costs upon the party responsible for the situation; and (4) the

equaties of a particular situation. As the Commonwealth Court

emphasized in the Bell Atlantic case, these factors are not the

only factors which the Commission may consider in allocating

utility relocation costs nor has the Commission established a

fixed four prong test.

In this case, the Mary Street bridge is old and nearing

the end of its useful life. The testimony of Fairview Township's

engineer, Michael Hannigan, describes a list of structural

deficiencies. Mr. Hannigan had advised Fairview Township to

close the bridge because of deterioration to the north corner of

the east abutment. (N.T. 134-135). Mr. Hannigan testified that

when inspecting the bridge, he could stick his arm into a hole at

the north corner of the east abutment. (N.T. 140). This is

significant because the north corner of the east abutment

supports the truss of the bridge which is one of the main load

8

bearing members. (N.T. 141). Mr. Hannigan's inspection and

conclusions regarding the Mary Street bridge are documented in

the inspection report dated June, 1994, revised March, 1998.

(Fairview Exhibit No. 17).

Mr. Hannigan testified that the abutments of the Mary

Street bridge should be repaired. (N.T. 147-148). However, Mr.

Hannigan indicated that before any repair work should be

undertaken to the abutments, a load rating analysis should first

be performed. (N.T. 162). This load rating analysis would

consist of determining whether the steel members of the bridge

are capable of carrying more than three ton load by taking

measurements of the steel members and calculating how much weight

those various steel members could carry. (N.T. 175-177). Should

the load rating analysis reveal that the bridge is not capable of

carrying three tons, it should remain closed. (N.T. 162). Mr.

Hull, the Bureau of Transportation and Safety's witness,

concurred with the recommendation of performing a load rating

analysis first before initiating any repairs to the abutments.

(N.T. 259).

As is the situation with most cases involving

maintenance, none of the parties appear to dispute the

advisability of repairs to the structure but rather disagree over

what entity should be responsible for making them. The previous

Commission Order regarding maintenance responsibility at this

crossing is a Commission Order entered June 26, 1989 at Docket

9

No. 1-00870047. (Fairview Exhibit No. 15). That Order directed

Consolidated Rail Corporation to maintain the sub-structure and

super-structure of the Mary Street bridge to carry loads of seven

tons.

However, Consolidated Rail Corporation no longer owns

the rail-line which passes under the Mary Street bridge. Conrail

conveyed the rail-line to the Reading, Blue Mountain and Northern

Railroad Company on August 19, 1986. (Fairview Exhibit No. 24).

The deed which conveys the line from Consolidated Rail

Corporation to Reading, Blue Mountain and Northern Railroad

Company also obligates the Reading, Blue Mountain and Northern

Railroad Company to assume all responsibilities imposed on

Consolidated Rail Corporation by the Public Utility Commission.

(Fairview Exhibit No. 24).

Therefore, it is logical that the Reading, Blue

Mountain and Northern Railroad Company should perform the load

rating analysis for the Mary Street bridge. Should the load

rating analysis reveal that the steel members are capable of

carrying more than three tons, Reading, Blue Mountain and

Northern Railroad Company should then undertake repairs to the

abutments in order to reopen the bridge to vehicular traffic.

However, should the load rating analysis reveal that the steel

members are not capable of carrying three tons, Reading, Blue

Mountain and Northern Railroad Company should advise other

10

parties of this fact and the bridge should be permanently closed

and barricaded.

Should the bridge be reopened to vehicular traffic, the

Commission should order Fairview Township to make repairs and

improvements suggested by its inspection report. In particular,

since Fairview Township bears responsibility under the June 26,

1989 Order at Docket No. 1-00870047, for the bridge deck and the

highway approaches, including guide-rail protection, the

Commission should direct Fairview Township to make repairs to the

wearing surface of the bridge deck and install appropriate guide-

rails on the approaches to the bridge in order to prevent

vehicles from going through the inadequate barriers now in place

and falling onto the railroad right-of-way below.

If the Commission believes that circumstances have

changed so as to warrant reallocation of the maintenance

responsibilities from the June 26, 1989 Order, it may do so.

However, the Bureau of Transportation and Safety believes that no

evidence was presented so as to justify changing the maintenance

allocation from the Order entered June 26, 1989 at Docket No. I-

00870047.

11

II. THE COMMISSION SHOULD DIRECT A PARTY TO REPLACE THE STRUCTURE CARRYING MARY STREET OVER THE FACILITIES OF THE READING, BLUE MOUNTAIN AND NORTHERN RAILROAD COMPANY IN ORDER TO PREVENT ACCIDENTS AND PROMOTE PUBLIC SAFETY.

The repairs to the Mary Street bridge outlined above

are only a temporary solution. Fairview Township's engineer, Mr.

Hannigan, stated that the repairs he proposed would only extend

the life of the bridge for another two to five years. (N.T.

149). Mr. Hannigan testified that the bridge was built in 1894

and is now past its expected useful life. (N.T. 156). According

to Mr. Hannigan, the existing Mary Street structure should be

replaced with a new structure. (N.T. 150-151). Fairview

Township has already taken steps to have the Mary Street bridge

placed on a priority list for funding under the Commonwealth's

twelve year plan. (N.T. 153-155). (Fairview Township Exhibit

No. 11).

Fairview Township has presented evidence supporting its

contention that the Mary Street bridge is necessary and that a

new bridge should be constructed. Testimony provided by various

witnesses indicate that the existing access to the Solomon's Gap

portion of Fairview Township from Lehigh Street is inadequate for

fire trucks, ambulances and school buses. These witnesses and

others testified that having a second access to the Solomon Gap

area of Fairview Township via the Mary Street bridge provides

better access for fire trucks, ambulances and school buses.

12

Mr. Hull of the Bureau of Transportation and Safety

stated that since Fairview Township has determined that a

crossing at Mary Street is necessary, it should undertake

preparation of plans for a replacement structure. (N.T. 261).

Included in those plans should be provision for the relocation of

the gas and water facilities attached to the structure.

According to Mr. Hull such plan preparation would take

approximately two years. (N.T. 262).

Those plans should be then submitted to the Commission

and all parties for their review and comment. Once the plans are

approved, the Commission should direct Fairview Township to

replace the bridge. If the Commission believes that it is just

and reasonable for other concerned parties to share in the cost

of the replacement, the Commission should order those parties to

reimburse costs to Fairview Township, based on whatever relevant

factors it deems appropriate, including, but not limited to those

factors set forth in Greene Township v. Pa. P.U.C.. 668 A.2d 615

(Pa. Commw. Ct. 1995) and Bell Atlantic - Pa.. Inc, v. Pa.

P.U.C.. 672 A.2d 352 (Pa. Commw. Ct. 1996). The Commission

should also allocate the cost of relocating the gas and water

facilities attached to the structure.

In addition, the Commission should direct a party to

maintain the new structure. Since Fairview Township has

determined that a second access to the Solomon's Gap area is

13

necessary, the Commission should assign it maintenance

responsibility for the replacement structure.

CONCLUSION

The Mary Street bridge needs a load rating analysis in

order to determine whether repairs to the structure are feasible

in order to reopen it to vehicular traffic. The Commission also

needs to assign future maintenance responsibility for the

existing structure. The Commission should assign the

responsibility for both those obligations to the Reading, Blue

Mountain and Northern Railroad Company as successor to

Consolidated Rail Corporation under its previous Order.

In addition, the Commission should direct Fairview

Township to prepare plans for replacement of the Mary Street

bridge since any repairs to the existing Mary Street bridge will

only be temporary in nature. Plans should then be submitted to

the Commission and parties for their review and approval. Once

the Commission reviews and approves the plans, it should direct

Fairview Township to commence construction of a replacement

structure.

15

Respectfully submitted.

Assistant Counsel

Counsel for Pennsylvania Public Utility Commission, Bureau of Transportation and Safety

John B. Wilson Counsel

P.0. Box 3265Harrisburg, PA 17105-3265 (717) 783-2840

Dated: June 9, 1998

16

PROPOSED FINDINGS OF FACT

1. The structure carrying Mary Street over the facilities of the Reading, Blue Mountain and Northern Railroad Company is a one span bridge approximately 45 feet long. (Blue Mountain Hearing Statement No. 1) .

2. The structure was built in 1894. (Blue Mountain Hearing Statement No. 1).

3. The vertical clearance above the tracks of. the Reading, Blue Mountain and Northern Railroad Company is approximately 23 feet. (Blue Mountain Hearing Statement No. 1).

4. The structure is a steel deck truss with a deck width of 12.4 feet. (Fairview Township Exhibit No. 17).

5. The bridge was closed to vehicular traffic in February of 1997. (Fairview Township Exhibit No. 17).

6. Prior to its closing to vehicular traffic, the structure was posted for a seven ton weight limit. (Fairview Township Exhibit No. 17).

7. This crossing is the subject of a previous Commission Order dated June 26, 1989 at Docket No. 1-00870047. (Fairview Township Exhibit No. 15).

8. Previously, the Pennsylvania Public Service Commission by Order dated January 25, 1927 at Docket No. C-5938 at directed the Central Railroad Company of New Jersey to strengthen the Mary Street bridge, referred to as Nuangola Road. (N.T. 256-258).

9. There is currently one non-electrified track under the Mary Street bridge. (Blue Mountain Hearing Statement No. 1).

10. The Reading, Blue Mountain and Northern Railroad Company currently operates four trains per day over this line at a maximum speed of 28 miles per hour. (Blue Mountain Hearing Statement No. 1).

11. D&H currently operates six trains per day over this same rail-line. (Blue Mountain Hearing Statement No. 1).

12. The Solomon's Gap area of Fairview Township potentially generates a total of 597 trips per day. (Fairview Township Exhibit No. 3).

17

13. The Mary Street structure is currently closed due to deterioration of the northern corner of the east abutment. (N.T. 136-137, Fairview Township Exhibit No. 17, Fairview Township Exhibit No. 19).

14. The northern corner of the east abutment supports one of the trusses which in turns supports the bridge itself. (N.T. 140-141).

15. In order to reopen the bridge to vehicular traffic, repairs must be made to the abutments. (N.T. 147-148).

16. Before performing any repairs to the abutments, a load rating analysis should be performed. (N.T. 162).

17. The Mary Street bridge without vehicular traffic using it will not fall under its own weight. (N.T. 166).

18. If the load rating analysis indicates that the steel members of the structure are not capable of carrying three tons, the bridge should remain closed to vehicular traffic. (N.T.162) .

19. Repairs to the existing bridge will prolong the life of the Mary Street structure another two to five years. (N.T.149) .

20. The Mary Street bridge will have to be replaced. (N.T.150) .

21. Replacement of the Mary Street structure could take approximately three to five years. (N.T. 150).

22. The cost to repair the existing Mary Street bridge isapproximately $20,000.00. (N.T. 147, Fairview TownshipExhibit No. 17).

23. The cost to replace the Mary Street structure isapproximately $410,000.00. (N.T. 151, Fairview TownshipExhibit No. 17, Fairview Township Exhibit No. 18).

24. Preparation of plans to replace the Mary Street structure will take approximately two years. (N.T. 262).

18

1.

PROPOSED CONCLUSIONS OF LAW

The Commission has jurisdiction over the subject matter and parties to this proceeding pursuant to 66 Pa. C.S. §§2702 and 2704.

2. The Pennsylvania Department of Transportation, Consolidated Rail Corporation, Reading, Blue Mountain and Northern Railroad Company, Fairview Township, Luzerne County, Pennsylvania American Water Company and PG Energy Company are all concerned parties within the meaning of 66 Pa. C.S. §§2702 and 2704.

3. The Commission can promote safety at this crossing by directing a load rating analysis be performed to the existing structure to determine whether it is capable of carrying vehicular traffic.

4. The Commission can promote safety by directing that the structure remain closed to vehicular traffic if the load rating analysis reveals that the structure is not capable of carrying three tons.

5. The Commission can promote safety at this crossing by directing repairs be made to the bridge abutments if the load rating analysis reveals that the structure is capable of carrying three tons.

6. It is just and reasonable for the Reading, Blue Mountain and Northern Railroad Company as successor to Conrail to bear responsibility for the load rating analysis of the Mary Street bridge.

7. It is just and reasonable for the Reading, Blue Mountain and Northern Railroad Company as successor to Consolidated Rail Corporation to be responsible for maintaining the existing Mary Street structure.

8. The Commission can promote safety and prevent accidents by directing that the existing Mary Street structure be replaced.

9. It is just and reasonable for Fairview Township to prepare plans for the replacement of the Mary Street bridge.

10. It is just and reasonable for Fairview Township to construct a replacement for the Mary Street bridge.

11. It is just and reasonable for Fairview Township to maintain the new replacement structure.

19

PROPOSED ORDERING PARAGRAPHS

1. That the Reading, Blue Mountain and Northern Railroad Company, at its sole cost and expense, perform a load rating analysis of the Mary Street structure to determine whether it is capable of carrying vehicular traffic.

2. That Reading, Blue Mountain and Northern Railroad Company submit copies of its load rating analysis to the Commission and all parties of record for their review and comment.

3. That if the load rating analysis reveals that the existing Mary Street structure is incapable of carrying at least three tons, that the structure remain closed to vehicular traffic.

4. That if the load rating analysis reveals that the structure is capable of carrying more than three tons, the Reading, Blue Mountain and Northern Railroad Company make repairs to the abutments in order to reopen the structure to vehicular traffic.

5. That upon repair to the abutments that the structure be reopened to vehicular traffic and posted for the weight limit dictated by the load rating analysis.

6. That the Reading, Blue Mountain and Northern Railroad Company maintain the structure at the posted weight limit.

7. That Fairview Township, at its initial cost and expense, prepare plans for the replacement of the Mary Street bridge.

8. That Fairview Township submit the plans for replacement of the Mary Street bridge to the Commission for review and approval and serve copies of the plans on all concerned parties for comment within two years of the entry date of this order.

9. That Fairview Township, at its initial cost and expense, perform all work in accordance with the approved replacement plans to replace the Mary Street within one year of the date of Commission approval of the plans.

10. That Fairview Township, at its sole cost and expense, maintain the entire replacement Mary Street bridge structure.

11. That this order, insofar that it places costs on various parties is without prejudice to their respective rights to recover said costs from others in accordance with any lawful agreement.

20


I hereby certify that I am this date serving the foregoing

document upon the persons and in the manner indicated below:

Service Bv First Class Mail Addressed As Follows:

Honorable Richard M. LovenwirthAdministrative Law JudgePa. Public Utility CommissionRoom 317, Scranton State Office Building100 Lackawanna AvenueScranton, PA 18503

Susan Simms, EsquirePa. American Water Company800 West Hershey Park DriveP.O. Box 888Hershey, PA 17033-0888

Jason D. Sharp, EsquirePa. Department of Transportation9th Floor, Forum Place555 Walnut StreetHarrisburg, PA 17101-1900

Robert N. Gawlas, Jr., Esquire Rosenn, Jenkins & Greenwald, L.L.P.15 South Franklin Street Wilkes-Barre, PA 18711-0075

Eric M. Hocky, Esquire Gollatz, Griffin and Ewing, P.C.213 West Miner Street P.O. Box 796West Chester, PA 19381-0796

Benjamin C. Dunlap, Jr., Esquire Nauman, Smith, Shissler and Hall 200 North Third Street P.O. Box 840 Harrisburg, PA 17108


oSaf

David A. Salapa Assistant Counsel Counsel for Pennsylvania Public Utility Commission

P.O. Box 3265Harrisburg, PA 17105-3265 (717) 783-2840

Dated: June 9, 1998

date: subject: 1-00970069 to100 lackawanna avenue scranton, pennsylvania ... township submit into...

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