Opinion
No. 2407 C.D. 2010
08-24-2011
White Haven Borough, Petitioner v. Pennsylvania Public Utility Commission, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES R. KELLEY, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE KELLEY
White Haven Borough (Borough) petitions for review of the September 3, 2010, order of the Pennsylvania Public Utility Commission (PUC) denying the Borough's Objections to Plan for Repair/Replacement of the White Haven Wall and the October 25, 2010 order of the PUC denying the Borough's Petition for Reconsideration. We affirm.
In its September 3, 2010 opinion and order, the PUC set forth the following history concerning this matter. This action began on September 18, 2000, when the Borough filed a formal complaint against Reading, Blue Mountain & Northern Railroad Company (Railroad) concerning two specific areas along the Railroad's tracks. One of the areas involved the railroad trestle bridge located at Susquehanna Street (hereinafter referred to as "Susquehanna Street Bridge") in White Haven Borough, Schuylkill County, Pennsylvania, and the associated 171-foot retaining wall. After hearings on the formal complaint, an administrative law judge (ALJ) issued a recommended decision on October 10, 2001. By opinion and order entered on February 8, 2002, the PUC, inter alia, sustained the formal complaint relative to the Susquehanna Street Bridge below-grade crossing and associated retaining wall. Therein, the PUC directed, in pertinent part, as follows:
5. [The Railroad] shall, within nine months of the entry of this Opinion and Order, furnish all material and do all work necessary to cut and remove all trees growing around the Susquehanna Street Bridge and between its tracks and the retaining walls along the track approaching the bridge.
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9. [The Railroad] shall, within twelve months . . . perform an in-depth inspection and evaluation of the stone retaining walls along its tracks leading from the Susquehanna Street railroad bridge and prepare and submit to this Commission and each party of record a written report of its in-depth inspection and evaluation of the retaining walls including an evaluation of the stability of the stone walls, locations of failures or potential failures, reasons for failures or bulges in the walls, recommendations for prevention of future problems and recommendations for any necessary repairs including cost estimates for said work.
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19. That, upon the submission of the in-depth inspection and load rating analysis report of the bridge and the in-depth inspection and evaluation report of the retaining walls, a further hearing be held to consider the reports and their recommendations and any other issues involved.
The Railroad employed an engineer, Timothy S. Benner, P.E., to inspect the 171-foot retaining wall and to make recommendations as to how to maintain the integrity of the wall during its remaining service life. The engineer's report (the Benner Report), dated June 21, 2004, was provided to the Railroad and to the other parties of record. The Benner Report indicated that the retaining wall was decrepit and in need of repair and/or replacement.
When efforts to resolve the issues proved unsuccessful, the Law Bureau Prosecutory Staff (Prosecutory Staff), on behalf of the Bureau of Transportation and Safety, submitted a letter to an ALJ which averred that the Railroad had failed to make the necessary repairs in order to comply with the PUC's order. The letter also recommended that a hearing be scheduled.
A hearing was held on October 18, 2006, which the Borough, the Prosecutory Staff, the Pennsylvania Department of Transportation (DOT), and the Railroad attended. DOT was subsequently released from this proceeding with respect to the issues related to the retaining wall.
At the hearing, the Borough, the Prosecutory Staff and the Railroad agreed that the retaining wall was the sole issue which needed to be addressed. The Borough and the Prosecutory Staff agreed further that the recommendations contained in the Benner Report had not been implemented and that the Railroad should immediately undertake to do the recommended work. The Railroad took the position that the retaining wall was sufficient as it stood and that continued monitoring was all that was necessary.
The ALJ issued a recommended decision on November 8, 2007, in which it was concluded, inter alia, that the Railroad should prepare complete and detailed construction plans for the replacement of 171 feet of the retaining wall along its right-of-way in the approach to the Susquehanna Street Bridge and that the Railroad should, thereafter, be directed to do the necessary work at its sole cost and expense. The Prosecutory Staff and the Railroad filed exceptions to the recommended decision, and the Borough filed reply exceptions to the exceptions of the other parties.
By order entered on February 19, 2008 (February 2008 Order), the PUC, inter alia, adopted the November 8, 2007 recommended decision of the ALJ, as modified, and denied the Railroad's exceptions thereto. In addition to directing the Railroad to replace, at its sole cost and expense, the 171-foot retaining wall approaching the Susquehanna Street Bridge, the February 2008 Order instructed the Railroad to submit a structural engineer's evaluation and report of the timber bin wall (TBW Report), as referenced at page five of the Benner Report. The PUC directed the Railroad to file the TBW Report simultaneously with the construction plans for the replacement project, at its sole cost and expense, to all parties for examination, and to the PUC for approval. The work on the retaining wall was to be completed within one year of the date of entry of the February 2008 Order, which meant by February 19, 2009.
On August 1, 2008, the Railroad filed a petition for reconsideration, which was denied by the PUC by order entered on April 30, 2009 (April 2009 Order). However, due to an oversight, the April 2009 Order was not timely served on the parties; therefore, the April 2009 Order was served on the parties via a secretarial letter dated October 21, 2009. The secretarial letter directed that the deadline to complete the relevant work was extended until February 26, 2010.
The Railroad appealed the PUC's April 30, 2009, denying its petition for reconsideration to this Court. By memorandum opinion and order, this Court affirmed the PUC's order. See Reading, Blue Mountain and Northern Railroad Company v. PUC (Pa. Cmwlth., No. 2168 C.D. 2009, filed July 23, 2010).
Subsequently, the Railroad filed a petition seeking an extension of time, which was granted, in part, and denied, in part, by opinion and order entered by the PUC on January 14, 2010 (January 2010 Order). The Railroad was directed to submit a structural engineer's evaluation and the TBW Report by February 26, 2010. In addition, the Railroad was directed to complete work on the 171-foot retaining wall approaching the Susquehanna Street Bridge by May 1, 2010.
On June 8, 2010, the Railroad submitted its Plan for Repair/Replacement of the White Haven Wall (hereinafter referred to as "Railroad Plan"). The Borough filed Objections to Plan for Repair/Replacement of the White Haven Wall (hereinafter referred to as "Objections").
In its Objections, the Borough averred that the June 8, 2010 Railroad Plan is for the repair of the relevant retaining wall, when the final February 2008 Order, clearly calls for the replacement of the relevant retaining wall. The Borough requested that the PUC deny and reject the Railroad Plan based on the fact that it is not a plan for replacement of the retaining wall as directed by the February 2008 Order. Thus, the PUC determined that the crux of the instant matter was whether the Railroad Plan qualified as a plan for repair or a plan for replacement of the 171-foot retaining wall.
After reviewing the dictionary definitions of "repair" and "replace", the PUC determined that the Railroad Plan complied with the February 2008 Order to replace the retaining wall. See PUC Opinion and Order dated September 3, 2010 at 6. In this regard, the PUC noted the retaining wall resulting from the Railroad Plan should be structurally independent of the existing wall, thus constituting a new structure in the place of the existing wall, as outlined in the definition of "replace", which is to put something new in the place of. Id. The PUC noted further that the Railroad Plan had been endorsed by a licensed engineer. Id. Accordingly, in the interest of public safety, the PUC approved the Railroad Plan, directed the Railroad to proceed with the project, and further directed the Railroad to complete the project within sixty days. Id. at 6-7. The PUC also directed that the Railroad would be responsible for the future maintenance of the retaining wall, once completed. Id. at 7. Finally, the PUC noted that its approval of the Railroad Plan in no way transferred the responsibility for the proper design and construction of the retaining wall to the PUC; that liability remained with the Railroad and its agents and contractors. Id.
Accordingly, by opinion and order entered on September 3, 2010, the PUC: (1) overruled the Borough's Objections to the Railroad Plan; (2) approved the Railroad Plan; (3) ordered the Railroad, at its sole cost and expense to replace the 171-foot retaining wall approaching the Susquehanna Street Bridge located in the Borough, according to the June 8, 2010 Railroad Plan; (4) ordered the Railroad to complete the work on the retaining wall within sixty days of the entry of its opinion and order; and (5) ordered the Railroad to properly maintain the newly constructed retaining wall in a safe condition, including, but not limited to, the removal of all trees.
On September 10, 2010, the Borough filed a Petition for Reconsideration, Reargument and/or Stay of Order with the PUC. Therein, the Borough contended that at the time its Objections were filed to the Railroad Plan, the Borough did not have the opinion of its engineer regarding the plan to submit to the PUC. The Borough averred further, inter alia, that in June 24, 2010 engineer's opinion, the Railroad Plan is actually a sketch and not a plan and that the sketch is lacking in construction detail and no specifications are provided for performance of the work. This, the Borough argued, is a violation of the PUC's February 2008 Order. The Borough requested that the PUC, in the interest of public safety, reconsider its September 3, 2010 decision as the Railroad Plan is woefully inadequate.
By order and opinion entered September 23, 2010, the PUC denied the Borough's request for a stay of the PUC's September 3, 2010 order but granted reconsideration, within the meaning of Pa.R.A.P. 1701, pending review and consideration of the merits of the Borough's request for reconsideration.
Pursuant to Rule 1701, the PUC must act to grant a petition for reconsideration within thirty days of the date of the entry of the order for which reconsideration is sought or the PUC will lose jurisdiction to actually reconsider its order if a petition for review is timely filed with the appellate court.
Thereafter, the PUC denied the Borough's request for reconsideration and/or rehearing by opinion and order entered October 25, 2010, on the basis that the Borough did not address any new or novel arguments as grounds for reconsideration. The Borough has now petitioned this Court for review of the PUC's September 3, 2010 and October 25, 2010 orders.
The PUC has pointed out in its brief in opposition to the Borough's appeal that the PUC filed an enforcement action against the Railroad with this Court on April 13, 2010, seeking to enforce the PUC's February 2008 and January 2010 Orders ordering the Railroad to complete work on the 171-foot retaining wall approaching the Susquehanna Street Bridge in the Borough. See Pennsylvania Public Utility Commission v. Muller, et. al, 365 MD 2010. This is the same 171-foot retaining wall at issue herein. A review of this Court's docket with respect to this enforcement action reveals that, after engaging in settlement negotiations, a final status report was filed by the PUC on April 28, 2011, informing this Court that all remaining issues with respect to the completion of the retaining wall have been resolved and that the work has been completed. The PUC further stated in the status report that it had scheduled May 12, 2011 for inspection of the completed work. It is well settled that this Court may take judicial notice of pleadings and judgments in other proceedings where appropriate. In re Estate of Schulz, 392 Pa. 117, 139 A.2d 560 (1958); Krenzel v. Southeastern Pennsylvania Transportation Authority, 840 A.2d 450 (Pa. Cmwlth. 2003).
In response to the filing of the April 28, 2011 status report, this Court issued an order on May 2, 2011, directing the PUC to file another report on the status of the construction of the retaining wall on or before May 26, 2011, if a praecipe to discontinue the matter had not been filed. Id. On May 23, 2011, the PUC filed a Praecipe for Discontinuance pursuant to Pa. R.C.P. No. 229, which provides the exclusive method of voluntary termination of an action by a plaintiff before commencement of the trial. Id. This Court then issued a Notice of Discontinuance and the enforcement action filed at this Court's Docket Number 365 MD 2005 was discontinued effective May 23, 2011. Id.
Accordingly, this Court can safely assume that the retaining wall for which the Borough is challenging the replacement plan for is now complete resulting in the instant matter appearing to be moot. However, for reasons not clear to this Court, neither the Borough nor the PUC have filed an appropriate motion with this Court requesting that this appeal be dismissed. The Court believes that, at a minimum, it was incumbent upon the Borough to have at least alerted the Court to the fact that the retaining wall was under construction and almost completed when it filed its brief in this appeal on January 31, 2011. The Court notes that the PUC states in the April 28, 2011, status report filed with this Court at Docket Number 365 MD 2010, that a second on-site inspection of the retaining wall was conducted on January 6, 2011, and included participation by the Borough. However, given the prolonged history of this matter and notwithstanding the completion of the 171-foot retaining wall, this Court will address the merits of the Borough's appeal out of an abundance of caution.
This Court's scope of review of the PUC's decision is limited to determining whether constitutional rights have been violated, an error of law committed, or whether the PUC's findings and conclusions are supported by substantial evidence. Montour Trail Council v. Pennsylvania Public Utility Commission, 547 Pa. 367, 690 A.2d 703 (1997). Our scope of review from the denial of reconsideration is whether the PUC abused its discretion. Popowsky v. Pennsylvania Public Utility Commission, 676 A.2d 731 n.7 (Pa. Cmwlth. 1996); J.A.M. Cab Company, Inc. v. Pennsylvania Public Utility Commission, 572 A.2d 1317 (Pa. Cmwlth. 1990). An abuse of discretion occurs if the agency decision demonstrates bad faith, fraud, capricious action or an abuse of power. J.A.M. Cab Company. In deciding whether to deny reconsideration, the PUC considers whether the petitioner has presented new evidence, changed circumstances, or previously unconsidered law. Id.
Initially, we point out that while the Borough has petitioned for review of both the September 3, 2010 and October 25, 2010 orders, the Borough's arguments set forth in its brief relate solely to the PUC's October 25, 2010 order. Moreover, in its conclusion, the Borough respectfully requests only that the PUC's opinion and order of October 25, 2010, denying the Borough's petition for reconsideration be reversed. Accordingly, we conclude that the Borough has waived any issues with respect to the PUC's September 3, 2010 order. See Pa.R.A.P. 2116(a); County of Venango v. Housing Authority of Venango, 868 A.2d 646 (Pa. Cmwlth. 2005); Van Duser v. Unemployment Compensation Board of Review, 642 A.2d 544 (Pa. Cmwlth. 1994) (Issues not briefed are waived.).
With respect to the PUC's October 25, 2010 order denying the Borough's petition for reconsideration, the Borough argues that its engineer's report was not received in time to originally attach it to the Objections filed by the Borough. The Borough contends that the issues raised in its petition for reconsideration concerned the various and blatant defects in the Railroad Plan. The Borough contends further that it is clear that the opinion of the Borough's engineer was a new argument which raised several issues not heard or considered by the PUC when it issued the September 3, 2010 order. The Borough argues that while it did not have its engineer's report available at the time it filed its Objections, the Borough submitted the engineer's report with its petition for reconsideration on September 10, 2010. The Borough contends that the PUC abused its discretion by denying its petition for reconsideration when the engineer's report clearly lays out the deficiencies in the so called Railroad Plan.
In denying the Borough's petition for reconsideration, the PUC stated as follows:
On review, we note that the Borough's Objection was dated June 25, 2010, but was not received in the Secretary's Bureau until June 28, 2010. If the engineer's June 24, 2010 opinion was mailed to the Borough, that opinion may not have been available to the Borough before the Objection was submitted. Although the better procedure would have been for the Borough to request an extension of time in which to submit its engineer's opinion, along with its Objection, we will not deny reconsideration on this basis.
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To the extent that the Borough seeks rehearing, we note that the only issue before the Commission at this time is whether or not to approve the plan as submitted by the Railroad. The safety issue convinces us that hearings on the Plan now are not in the public interest. In our September 3 Order, we directed the Railroad to complete the project within sixty days and we further directed that the Railroad will be responsible for future maintenance of the [w]all, emphasizing that "the plan in no way transfers the responsibility for the proper design and construction of the wall to the Commission. That liability remains with the Railroad and its agents and contractors." September 3 Order at 7. Accordingly, as pointed out by [the Prosecutory Staff], if the wall to be built by the Railroad is defective because of design or in its construction, the defect should become manifest at some point and the Railroad would have to correct the defect. [Prosecutory Staff] Answer, ¶ 9.
The Borough requests, "in the interest of public safety," that we reconsider our September 3 Order. Petition at¶ 25. As noted by [the Prosecutory Staff], our Order does reflect a concern for public safety. Specifically, the
condition of the retaining wall was raised as a concern by the Borough ten years ago. Our Order required the work to be completed within sixty days. If this matter were to be continued further, in order to accommodate additional hearings, the work on the wall would likely not be completed until the spring of 2011, or later. [Prosecutory Staff] Answer, ¶ 9.PUC October 25, 2010 Opinion at 8-9.
The foregoing reasons set forth by the PUC for denying the Borough's petition for reconsideration are sound. This Court recognizes that the Borough's engineer's report sets forth in detail several deficiencies in the Railroad Plan as submitted to the PUC. However, in reaching its decision to approve the Railroad Plan, the PUC reviewed the plan as submitted and fully considered the Borough's Objections to the Railroad Plan in its September 3, 2010 opinion and order. Moreover, the PUC recognized that the Railroad Plan was not very detailed; however, it found it was adequate when it approved it and ordered the Railroad to replace the existing 171-foot retaining wall and to properly maintain the newly constructed retaining wall in a safe condition. Accordingly, the Court concludes that the PUC did not abuse its discretion in denying the Borough's petition for reconsideration.
The September 3, 2010 and October 25, 2010 orders of the PUC are affirmed.
/s/_________
JAMES R. KELLEY, Senior Judge ORDER
AND NOW, this 24th day of August, 2011, the orders of the Pennsylvania Public Utility Commission entered September 3, 2010 and October 25, 2010, in the above-captioned matter are affirmed.
/s/_________
JAMES R. KELLEY, Senior Judge