WHEELING & LAKE ERIE v. PUB. UTIL. COM'N PA.

Nos. 96-3703, 96-3704.

141 F.3d 88 (1998)

WHEELING & LAKE ERIE RAILWAY COMPANY v. PUBLIC UTILITY COMMISSION OF THE COMMONWEALTH OF PENNSYLVANIA; David W. Rolka, Chairman of the Pennsylvania Public Utility Commission; Joseph Rhodes, Jr.; John M. Quain; Lisa Crutchfield; John Hanger, In their Official Capacities as Members of the Pennsylvania Public Utility Commission; Scott Township, Pennsylvania; James P. Mulligan, Chairman of the Board of Commissioners of Scott Township, Pennsylvania Scott Township, Pennsylvania and James P. Mulligan, Chairman of the Board of Commissioners of Scott Township, Pennsylvania, Appellants in 96-3703. Public Utility Commission of the Commonwealth of Pennsylvania; David W. Rolka, Joseph Rhodes, Jr.; John M. Quain, Lisa Crutchfield and John Hanger, Appellants in 96-3704.

United States Court of Appeals, Third Circuit.

Decided March 31, 1998.


Attorney(s) appearing for the Case

David A. Salapa (Argued), Assistant Counsel, John F. Povilaitis, Chief Counsel, Pennsylvania Public Utility Commission, Harrisburg, PA, for Appellants, Pennsylvania Public Utility Commission; David W. Rolka; Joseph Rhodes, Jr.; John M. Quain; Lisa Crutchfield; and John Hanger.

David L. Haber (Argued), Weinheimer, Schadel & Haber, Pittsburgh, PA, for Appellants, Scott Township, Pennsylvania; and James Mulligan.

Gregory G. Fletcher (Argued), Baker, Donelson, Bearman & Caldwell, Memphis, TN, Richard R. Wilson Vuono, Lavelle & Gray, Pittsburgh, PA, for Appellee.

Charles D. Gray, National Association of Regulatory Utility Commissioners, Washington, DC, for Amicus, National Association of Regulatory Utility Commissioners.

Andrew S. Gordon, Chief Counsel, Gina M. D'Alfonso, Assistant Counsel in Charge, Commonwealth of Pennsylvania Department of Transportation, Harrisburg, PA, for Amicus, Commonwealth of Pennsylvania Department of Transportation.

Before: MANSMANN, NYGAARD and GARTH, Circuit Judges.


OPINION OF THE COURT

NYGAARD, Circuit Judge.

In this appeal we must decide whether assessing a railroad for a portion of the construction and maintenance costs of a bridge intersecting its right-of-way constitutes a discriminatory tax under the Railroad Revitalization and Regulatory Reform (4-R) Act of 1976, 49 U.S.C. § 11501.1 The district court held that the assessment was a discriminatory tax. We will reverse.

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