In contrast to its 1991 decisions discussed supra, § I.C., the Commonwealth Court's 1995 opinion suggested that it had changed its position and concurred with the federal interpretation of the exemption. See Consolidated Rail Corp. v. Pa. Pub. Util. Comm'n, 671 A.2d 248, 250-51 (1995) (" Conrail") (citing and discussing with approval Amtrak II, 848 F.2d at 438); id. at 252 ("The PUC and this Court have duly recognized the federal preemption of the subject matter of state and local assessment of charges against Amtrak for repair or replacement of railroad crossings."). It was in light of this decision, PUC now asserts, that it agreed to enter into a Consent Decree granting SEPTA substantially all of the relief sought in its Complaint.
The County further indicates that there are a litany of intermediate-court decisions in which costs for crossing projects have been allocated to non-owner railroads. See Brief for the County at 13 (citing Millcreek Twp., 753 A.2d at 328,Consolidated Rail Corp. v. PUC, 671 A.2d 248, 252 (Pa.Cmwlth.1995), and Pa. Game Comm'n v. PUC, 651 A.2d 596, 605 (Pa.Cmwlth.1994)). As Norfolk explains in its brief, however, none of the cited decisions supports the stated proposition.
Id. at 1526 n. 24. Thereafter, the Commonwealth Court acknowledged that "[t]he PUC and this Court have duly recognized the federal preemption of the subject matter of state and local assessment of charges against Amtrak for repair or replacement of railroad crossings." Consolidated Rail Corp. v. Pa. PUC, 671 A.2d 248, 252 (1995). With this background, the PUC agreed to the Consent Decree with SEPTA.
A fundamental requirement is that the Commission's order be just and reasonable. Consolidated Rail Corporation v. Pennsylvania Public Utility Commission, 671 A.2d 248 (Pa.Cmwlth. 1995). The Commission's allocations of costs, of repair or maintenance of highway-railroad crossing, between the parties is within the discretion of the Commission.
Because of the nature of the parties' relationship and because the PUC's involvement was legislated as a way to better maintain safety for the travelling public, the allocation of the costs of maintaining the bridge is like the rental fees paid in Amtrak II, and not a tax or fee of the kind for which Amtrak was intended to be exempt. The decision in Consolidated Railroad Corporation v. Pennsylvania Public Utility Commission, 671 A.2d 248 (Pa.Cmwlth. 1995), is not contrary to either SEPTA I or our holding in this case. There, Conrail argued that it was allocated too much of the costs for the repair and maintenance of bridge crossing tracks used by both Amtrak and Conrail, because once the PUC found Amtrak exempt from paying those costs, the legislative intent of the exemption was that the governmental entities be allocated those costs, not a private company.