Lessons Learned in My 30 Years of PUC Work

By Benjamin Dunlap, Jr.

In my 30 years of doing PUC regulatory work for our railroad clients at Nauman Smith, I have acquired skills and learned many lessons. I realize that most other attorneys have had similar learning experiences within their particular spheres of practice, but I will share some of mine in this context.


Railroad crossing cases under the Public Utility Code are subject to an equitable standard, meaning that the PUC decides what is just and reasonable under the facts of a particular case. This creates many openings for negotiation and compromise.

I usually start negotiations by assessing what is possible in a particular case. For instance, if there is a long-standing Order that our client is responsible for the maintenance of a highway bridge, there is very little chance that our client would be left off the hook for repair costs or at least some reconstruction costs if the bridge needs to be replaced. I then review the best and worst case scenarios with our client to discern how much risk they are willing to take in a particular situation, which can provide a good starting point to begin negotiations.

I also try to find a win-win whenever possible. Knowing what is important to the other side, be it PennDOT, a municipality, another public utility or a private property owner, and finding a way to provide some or all of that within the context of what our client is seeking (or trying to avoid), will generally smooth the way for our client obtaining what it seeks.

Understanding the Law and Facts

Understanding the applicable law and facts is of course elementary and essential to success in any area of the law. Practicing in the PUC realm, however, has provided some interesting examples of both.

In one case, involving retaining walls on the long approach for a roadway crossing under a railroad bridge, we were able to obtain historical documents showing that the length of the retaining walls was primarily due to the needs of adjacent property owners. That, coupled with the testimony of our engineer that retaining walls were not necessary for the structural integrity of the bridge, led the PUC to allocate maintenance responsibilities for most of the retaining walls to the involved municipality, with only those portions under the bridge itself allocated to the railroad. Those arguments did not work so well in another case, however, where a rail yard was adjacent to much of the long retaining walls leading to the underpass at that crossing.

As mentioned, the law rarely absolves our clients from all responsibility. However, there are exceptions.  One concerns the ­maintenance of sidewalks adjacent to rail lines.  Courts have deemed these to be of no benefit to the adjacent railroad, and thus are not subject to municipal ordinances placing sidewalk maintenance responsibilities on adjacent property owners. Another is that no matter how long a private crossing may have been in existence, users of the crossing have no right to its continued existence, except in very limited circumstances, absent an agreement with the railroad.  This contrasts with the general rules of property law, where a party may obtain a permanent right of access by continued, uninterrupted use of a private roadway over another person’s property for 21 years or more.

While railroads may not be allocated crossing-related costs without some level of property ownership at a public railroad-highway crossing, the Pennsylvania Supreme Court has determined that even the limited right to use another railroad’s tracks (in this case termed a “freight service easement”) may provide the requisite level of property interest for the involved railroad to be allocated costs.

Relationships with Other Counsel and Parties

Universally true across the practice of law, reputation and trustworthiness are essential. I think I have been successful in negotiations because the other side knows they can trust my word. I may not be able to tell them everything due to client confidences and strategy, but they can count on the veracity of what I do tell them.

Along with that goes the importance of building good relationships with those attorneys you deal with again and again over the years. There was an attorney at PennDOT with whom I worked for 25 years. While she fully and vigorously represented the interests of her client, and I did the same for mine, we were always cooperative and reasonable with each other and never played games. That led to many successfully negotiated resolutions over the years, including several involving creative thinking on the part of our engineering clients.

Making the Best of a Bad Situation

As in every area of the law, sometimes an attorney is simply presented with a bad set of facts or bad circumstances.  In one situation, large stones from the underside of a stone arch railroad bridge were falling onto a roadway. While our client certainly had a responsibility to remedy the situation, in doing so, the railroad also agreed to do some additional work to improve the roadway and drainage under the bridge, for which no party previously had been assigned responsibility.  In doing so, our client obtained agreement from the Township to assume those responsibilities in the future.

Under its “just and reasonable” standard, the PUC may consider contract rights asserted in a case, it is not bound by the contract and has no authority to definitively determine contract rights.  So in one case that eventually went to the PA Supreme Court, a city had signed a contract in the 1940s when it ran a waterline under the railroad’s tracks, to relocate the waterline at its cost if railroad operations ever made that necessary. The PUC initially decided that fairness determined that the railroad should pay waterline relocation costs of about $500,000 under the facts of that particular case.  Rather than challenging the fairness of the PUC’s decision on appeal, a difficult standard on which to prevail, the railroad instead directly asserted its contract rights in a court of law and recovered the relocation costs.

I am fortunate to have been provided many opportunities to learn and grow through my work over the years.  I look forward to continuing that work and learning as well as passing on the knowledge I have gained to those who will follow me, as others passed along their knowledge and lessons to me along the way.

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