PENNSYLVANIA PUBLIC UTILITY COMMISSION Harrisburg, PA 17105-3265

Public Meeting held January 22, 2009

Commissioners Present:

James H. Cawley, Chairman Tyrone J. Christy, Vice Chairman Robert F. Powelson Kim Pizzingrilli Wayne E. Gardner

Investigation upon the Commission’s own I-00970069 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 471S)

OPINION AND ORDER

BY THE COMMISSION:

Before the Commission for consideration and disposition is a Petition for Reconsideration (Petition) filed by Reading, Blue Mountain and Northern Railroad Company (RBMN) on October 30, 2008, relative to the above-captioned proceeding. The Order to which the Petition refers was issued on October 16, 2008. On November 13, 2008, Fairview Township (Township) filed an Answer to the Petition. History of Proceeding

On October 6, 1997, the Commission initiated the above-captioned investigation. The Commission entered an Opinion and Order in this matter on May 24, 1999, which directed the Township to prepare, and submit to this Commission for approval, construction plans for the demolition and removal of the existing bridge carrying Mary Street over the tracks of RBMN. The pertinent plans were to be submitted on or before May 24, 2001.

By Opinion and Order entered October 16, 2000, the Township was granted until May 24, 2003, to submit the relevant plans. By Opinion and Order entered June 17, 2003, the Township was granted a further extension until May 24, 2004, to submit the plans. By Opinion and Order entered May 12, 2004, the Township was granted a further extension until May 24, 2005, to accomplish the requirements set forth in Paragraphs 7 and 8 of the Commission’s Order entered May 24, 1999.

On February 14, 2005, the Township filed a request for an extension of time, requesting that it be granted until May 24, 2006, to accomplish the requirements set forth in Paragraphs 7 and 8 of the May 24, 1999 Order. RBMN filed a Reply objecting to the Petition and the Township filed a Response to RBMN’s Reply. By Order entered June 3, 2005, the Commission granted the Township’s requested extension of time.

The Township was granted another extension of time, until May 24, 2007, to accomplish the requirements set forth in Paragraphs 7 and 8 of the May 24, 1999 Order. On May 23, 2007, the Township submitted a detailed right-of-way and construction plan for the Commission’s approval. By Secretarial Letter issued on June 14, 2007, the Commission certified the plans as correct and approved them.

2 On May 20, 2008, the Township filed a Petition for Extension of Time which requested an extension of time within which to complete the directives contained in Paragraph 9 of the Commission’s Order entered herein on May 24, 1999. No response to that Petition was filed.

By Order entered herein on October 16, 2008, the Commission granted the Township’s Petition for Time Extension and extended the previous deadline until December 31, 2009, to allow the Township time in which to complete the requirements set forth in Paragraph 9 of the Commission’s Order entered on May 24, 1999.

RBMN’s Petition and the Township’s Answer were filed as above noted.

Discussion

The Public Utility Code (Code) establishes a party’s right to seek relief following the issuance of our final decisions pursuant to Subsections 703(f) and (g) of the Code, 66 Pa. C.S. § 703(f) and (g), relating to rehearings, as well as the rescission and amendment of orders. Such requests for relief must be consistent with Section 5.572 of our Regulations, 52 Pa. Code § 5.572, relating to petitions for relief following the issuance of a final decision. Section 5.572(a) provides that:

Petitions for rehearing, reargument, reconsideration, clarifi- cation, rescission, amendment, supersedeas or the like shall be in writing and shall specify, in numbered paragraphs, the findings or orders involved, and the points relied upon by petitioner, with appropriate record references and specific requests for findings or orders desired.

The standards for a petition for relief following the issuance of a final decision were addressed in Duick v. PG&W, 56 Pa. PUC 553 (1982) (Duick). Duick held that a petition for rehearing under Subsection 703(f) of the Code must allege newly- discovered evidence not discoverable through the exercise of due diligence prior to the close

3 of the record. Duick at 558. A petition for reconsideration under Subsection 703(g), however, may properly raise any matter designed to convince us that we should exercise our discretion to amend or rescind a prior Order, in whole or in part. Furthermore, such petitions are likely to succeed only when they raise “new and novel arguments” not previously heard or considerations which appear to have been overlooked or not addressed by us. Duick at 559.

In the Petition, RBMN avers that the Commission acted incorrectly when it granted the requested extension of time to the Township per the Order entered October 16, 2008. Specifically, RBMN asserts that the Township did not provide adequate support for its request for a further extension. RBMN also asserts that nothing has changed since it opposed the prior extension of time granted to the Township, in an Order entered in May of 2006, except the passage of an additional two and one-half years. Petition at 3-4.

On review of the Petition, we find it not to be meritorious. We note initially that the Township timely filed its construction plans and metes and bounds descriptions on May 23, 2007, in accordance with the Commission Order entered on May 22, 2006. Subsequent to the Commission’s approval of those plans, RBMN filed an appeal, which was denied by the Commission’s Order of September 5, 2007. On May 19, 2008, the Township filed its Petition for Extension of Time to Comply with Paragraph 9 of the Commission’s May 24, 1999 Order. On that same day, the Township served the Petition on all counsel of record at their last known addresses. No objections to the Township’s Petition were filed. By Order entered October 16, 2008, the Commission granted to the Township its requested extension.

Further, as the Commission found in its Order of October 16, 2008, the Township “has undertaken timely and good faith action to comply with our directives.” Opinion and Order at 3. It was also stated in that Order that, “since the approval of the

4 plans, the Township has been proceeding as expeditiously as possible to comply with Paragraph 9 of the May 24, 1999 Order.” Opinion and Order at 4. Moreover, we note that RBMN did not file an objection to the Township’s Petition, which was the subject of the Order for which RBMN now seeks reconsideration.

Conclusion

For the above-outlined reasons, we conclude that RBMN has not presented any “new and novel arguments” not previously heard or considerations which appear to have been overlooked or not addressed by us, and thus has not met the criteria for the grant of a petition for reconsideration. RBMN had the opportunity to voice its objections prior to the issuance of our October 16th Order. RBMN cannot raise objection now that should have been raised then. Accordingly, the instant Petition will be denied; THEREFORE,

5 IT IS ORDERED: That the Petition for Reconsideration of the Commission’s Order entered herein on October 16, 2008, filed by Reading, Blue Mountain and Northern Railroad Company is denied.

BY THE COMMISSION,

James J. McNulty Secretary

(SEAL)

ORDER ADOPTED: January 22, 2009

ORDER ENTERED: January 23, 2009

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