Opinion
No. 85-476
Decided March 19, 1986.
Public Utilities Commission — Railroads — Train-activated warning devices — Determination that prior order has been violated — Ruling will not be reversed, when.
O.Jur 2d Public Utilities § 44.
When the Public Utilities Commission holds a hearing and determines that one of its prior orders has been violated, the commission's determination of that issue will not be reversed on appeal unless it is against the manifest weight of the evidence.
APPEAL from the Public Utilities Commission of Ohio.
On January 20, 1971, a mother and her minor child were killed in an accident at the Baltimore Ohio railroad crossing on Stahlheber Road in Butler County's Hanover Township. The crossing had been a public safety concern for years and in 1976, State Representative Michael A. Fox, acting on behalf of the Citizens for Safety Committee of Hanover Township, filed a complaint with the Public Utilities Commission of Ohio ("commission") seeking the installation of train-activated warning devices at the crossing.
On January 5, 1977, a public hearing on the complaint was held in Butler County. Although it was served with notice, appellant, the Baltimore Ohio Railroad Company ("railroad"), elected not to appear at the hearing. On April 28, 1977, the commission issued an opinion and order, which stated in part:
"It is the opinion of this Commission, after review of the testimony and exhibits submitted by the complainants and the staff of the Commission in this proceeding the Baltimore Ohio Railroad Company crossing on Stahlheber Road, near Hamilton, Ohio, must be considered dangerous within the meaning of Section 4907.47 Revised Code. The presently existing conditions at the subject crossing, in particular the physical characteristics of the crossing, the existing crossing protection or lack thereof, the restricted sight views of motorists, and the authorized train speed, create a sufficiently hazardous condition to the traveling public to warrant affirmative action by this Commission.
"It is further the opinion of the Commission * * * based upon conditions as they exist at the subject crossing, the appropriate Commission action is to direct automatic train activated flashers and gates be installed at the Stahlheber Road crossing.
"* * *
"ORDERED, The respondent, Baltimore Ohio Railroad Company, install, operate, and maintain automatic train activated flasher lights and gates at its single track crossing on Stahlheber Road, near Hamilton, Butler County, Ohio. It is, further,
"ORDERED, Respondent, Baltimore Ohio Railroad Company, submit installation plans for approval by the Commission's Railroad Department and data indicative of the actual cost of installation of the automatic train activated flasher light signals and gates and the annual maintenance thereof within thirty (30) days from the date of this Opinion and Order. It is, further,
"ORDERED, With respect to the apportionment of cost, a period of ninety (90) days from the date of this Commission Order be afforded wherein the County Commissioners of Butler County, Ohio and the Baltimore Ohio Railroad Company should determine sources and availability of funds, prepare an agreement as to the apportionment of costs herein and submit said agreement to this Commission for approval. It is, further,
"ORDERED, If the parties fail to reach agreement on the apportionment of costs within ninety (90) days, the County Commissioners of Butler County and the Baltimore Ohio Railroad Company should so notify the Commission and the costs should then be apportioned by this Commission in accord with Section 4907.47 Revised Code. * * *"
On August 10, 1977, the railroad responded to the commission's order by letter, requesting "* * * an extension of time in which to submit installation plans for approval by the Commission and data indicative of the actual cost of installation until September 7, 1977; and an extension of time until November 6, 1977 in which to come to an agreement with the Butler County Commissioners as to the apportionment of costs." On September 1, 1977, the commission granted the request.
The railroad advised the county that the estimated cost of the automatic train-activated warning system was $44,880. On November 17, 1977, the Butler County Board of Commissioners adopted a resolution authorizing the county engineer to enter into an agreement with the railroad for the installation of the warning system, and to assume ninety percent of the cost. On November 22, 1977, the county engineer wrote to the railroad, informed it of the resolution, asked the railroad to draft an agreement in accordance with the resolution, and to forward the agreement to him. The railroad did not send an agreement, install the warning system, or inform the commission that a decision concerning the apportionment of costs had not been reached.
The railroad subsequently informed the county that the cost of the project had increased. The county engineer immediately investigated the increased cost and presented his findings to the board of county commissioners. The board passed a resolution agreeing to the increased cost.
On August 26, 1978, two more people were killed at the Stahlheber Road crossing. Representative Fox then telephoned the railroad's attorney to find out why the warning system had not been installed. He was told that the commission had never ordered the installation of any warning devices. The warning system was installed shortly thereafter and became operative on October 17, 1978.
On November 17, 1980, Larry R. Miller, the father of one of those killed in the August 26, 1978 accident, filed a complaint with the commission seeking a determination that the railroad violated the commission's orders of April 28, 1977 and September 1, 1977. Pursuant to R.C. 4905.61, any railroad that fails to do anything required by a commission order will be liable to the party injured thereby in treble the amount of damages sustained in consequence of that failure. After a public hearing on Miller's complaint, the commission issued an order and opinion stating:
"The Railroad violated the April 28, 1977 Order by failing to either execute and forward to the Commission an agreement as to apportionment of costs, or in the alternative, to notify the Commission that it had failed to reach an agreement, within the time specified by the Commission."
The cause is now before this court upon an appeal as of right.
Squire, Sanders Dempsey, James M. Tobin and David J. Hirsch, for appellant.
Anthony J. Celebrezze, Jr., attorney general, Robert S. Tongren and Steven H. Feldman, for appellee.
Ruppert, Bronson Chicarelli Co., L.P.A., James D. Ruppert and John D. Smith, for intervening appellee Larry R. Miller.
The issue in this case is whether the commission erred in finding that the railroad violated its April 28, 1977 and September 1, 1977 orders. In resolving this issue, we are mindful of the fact that this court will not disturb a commission order unless it appears from the record that the order is manifestly against the weight of the evidence and is so clearly unsupported by the record as to show misapprehension, mistake or willful disregard of duty. Cleveland Elec. Illuminating Co. v. Pub. Util. Comm. (1975), 42 Ohio St.2d 403 [71 O.O.2d 393], paragraph eight of the syllabus.
Although the commission did not make an express finding that the September 1, 1977 order was violated, such a determination is implicit from the record of this case.
The starting point of our analysis must be the April 28, 1977 commission order. The order required the railroad to do four things: (1) to install an automatic train-activated warning system at the Stahlheber Road crossing; (2) to submit information concerning the cost of the system, and plans for its installation to the commission within thirty days; (3) to enter into an agreement, within ninety days, with Butler County as to the apportionment of the cost of the warning system; and (4) to notify the commission if the parties could not agree as to the apportionment of the cost within the time specified by the commission. Subsequently, the railroad requested that it be given an extension of time until November 6, 1977 to enter into an agreement with the county as to the apportionment of costs. The commission granted the request for an extension of time by an order dated September 1, 1977.
The railroad did not comply with the orders of the commission. It failed to enter into an apportionment-of-costs agreement or, in the alternative, to notify the commission, by November 6, 1977, of its failure to do so. In fact, the railroad chose to disregard its obligations until the occurrence of the August 26, 1978 double fatality at the Stahlheber Road crossing. After that tragic incident (the second double fatality at the crossing in less than eight years), the railroad immediately entered into an apportionment-of-costs agreement with the county, and the warning system became operational on October 17, 1978. Based on these facts, the commission found that the railroad violated the commission's previous orders. When the commission holds a hearing and determines that one of its prior orders has been violated, the commission's determination of that issue will not be reversed on appeal unless it is against the manifest weight of the evidence. Southern Ry. System v. Pub. Util. Comm. (1957), 166 Ohio St. 240, 242 [2 O.O.2d 60].
We find the commission's determination, that the railroad violated the commission's previous orders, to be supported by competent, credible evidence and it is, therefore, affirmed in all respects.
Order affirmed.
CELEBREZZE, C.J., SWEENEY, LOCHER and C. BROWN, JJ., concur.
WRIGHT, J., concurs in judgment only.
HOLMES, J., dissents.
Although I agree that this court will not disturb a commission order unless it appears from the record that the order is against the weight of the evidence and shows misapprehension, mistake, or willful disregard of duty, under Cleveland Elec. Illuminating Co. v. Pub. Util. Comm. (1975), 42 Ohio St.2d 403 [71 O.O.2d 393], paragraph eight of the syllabus, I differ from the majority in that I believe the record demonstrates that such test has been met.
After the tragic accident on August 26, 1978, the commission specifically found that the B O Railroad had not violated the April 28, 1977 order to install and maintain automatic protection devices at the crossing involved herein. On December 21, 1978, the commission in part entered the following:
"2. On October 17, 1978, the devices were placed into service.
"3. The staff of the Commission's Railroad Section submitted its final inspection report on December 5, 1978 indicating respondent had complied fully with the Commission's order and all systems were functioning properly.
"4. This matter should now be closed of record."
No motion for rehearing was filed as to this final order, but, in December 1984, six years later, the commission found that the railroad violated the April 1977 order. This change in factual findings violates the res judicata and collateral estoppel doctrines as well as the decisions of this court. Once the commission has made a final order finding that the railroad had complied fully with the April 1977 order, absent an application for rehearing, the commission may not lawfully reopen a closed case and change the order. Greer v. Pub. Util. Comm. (1961), 172 Ohio St. 361 [16 O.O.2d 214]; Pollitz v. Pub. Util. Comm. (1918), 98 Ohio St. 445. Therefore, the commission's order dated December 4, 1984, which does just that, is unlawful and may not be upheld by this court.
Even if there were no unlawful reopening of cases and refinding of facts, the record does not necessarily support the commission's finding that the April 1977 order was violated. The commission's decision itself states that "no definite date for completion of the installation was established," but goes on to blame the railroad's failure to submit a cost apportionment agreement as the cause of the commission's own failure to set such a date. When the railroad attempted to put forth evidence of the commission's acquiescence in modifications of its order as to when the cost apportionment agreement was required to be submitted, and of the commission's desire to have the matter resolved privately, such evidence was held inadmissible as irrelevant.
After the extension of the deadline for submission of plans until September 7, 1977 and for submission of the allocation agreement until November 6, 1977, the commission was apprised by the Butler County Engineer's letter dated June 9, 1978 that the agreement had not yet been received. J.W. Jenkins responded by letter dated June 30, 1978, on behalf of the commission, that: "We hope the agreement can be worked out very soon and submitted to the Public Utilities Commission for approval." Additionally, the commission's monthly meetings reviewing all railroad crossing projects resulted in no action taken against appellant.
Appellant proffered evidence through testimony of Marvin E. Rothharr, the commission's director of transportation, that in 1977-1978, the commission had agreed to issue orders seeking the resolution of crossing disputes via private agreements between the affected parties, and that the April 1977 order in issue reflected this approach. There was evidence that, because of this approach, the case was not pursued to culmination on an "apportionment order" basis as long as negotiations were on-going and that "[t]he Staff had only then to track it from the standpoint of, number one, whether the County was going to get the money and, number two, whether the agreement was going to be reached for installation between the two parties." Such evidence is indicative of orders being written broadly in order to give leeway for private agreements, and therefore not requiring specific actions unless and until an additional order was issued. This evidence is highly relevant to the railroad's compliance with an order designed only to serve as a mechanism for ultimate enforcement.
The railroad argued at the hearing that the April 1977 order was so phrased as to raise a question of fact of what the railroad was actually required to do, i.e., it "should" reach an agreement with the county as to cost apportionment, and, if it did not, it "should" notify the commission. This argument at least required the commission to determine whether the order was ambiguous in using the "should" language. In order to make such a factual determination, the commission must have all the relevant facts before it to enable it to reach a just and correct conclusion. Elyra Telephone Co. v. Pub. Util. Comm. (1953), 158 Ohio St. 441, 444 [49 O.O. 391]. As to the exclusion of the state representative's communications with a former commission staff member regarding the meaning of the April 1977 order, the commission in its January 22, 1985 order denying rehearing herein reasoned that the "Staff members or even Commissioners speaking outside the context of the official proceeding have no authority to countermand or modify the provisions of the Order." However, this does not explain why the excluded testimony was not relevant to determining the factual question of whether the "should" language in the order was ambiguous. Communications with the commission to help clarify the meaning of "should" in the order, are highly relevant to a finding on the order's ambiguity, as well as to the finding on the railroad's compliance.
Although this court may not generally reverse a commission's order because of an error in introduction of evidence, Cincinnati v. Pub. Util. Comm. (1949), 151 Ohio St. 353 [39 O.O. 188], we must do so where appellant is prejudiced thereby, Cincinnati Bell Tel. Co. v. Pub. Util. Comm. (1984), 12 Ohio St.3d 280. When a record supporting a commission's finding that its order was unambiguous is accomplished by excluding evidence that it was ambiguous, appellant is obviously prejudiced as it cannot be said that appellant would still be found in violation of the ambiguous order despite the evidentiary error. This is true especially in light of this court's decisions in Ormet Corp. v. Lindley (1982), 69 Ohio St.2d 263 [23 O.O.2d 150], and Recording Devices, Inc. v. Bowers (1963), 174 Ohio St. 518 [23 O.O.2d 150], allowing that reliance on informal commissioner or staff opinions may in some instances estop the commission from later taking a contrary stance.
Accordingly, I would have this court reverse the commission's finding that the railroad did not comply with the April 1977 order after the December 1978 entry finding that it had violated the order, or, at least remand the cause for a factual determination of whether the April 1977 order was ambiguous so as to allow for private negotiations to suffice as compliance with it.