Appeal, No. 211, Oct. T., 1955, from order of the Pennsylvania Public Utility Commission, Docket No. 81333, in case of Delaware River Port Authority v. Pennsylvania Public Utility Commission and Philadelphia Electric Company. Order affirmed.
Morris Duane, with him Henry T. Reath, John B. Felton, and Duane, Morris & Heckscher, for appellant.
Albert E. Luttrell, Assistant Counsel, with him Miles Warner, Assistant Counsel, and Thomas M. Kerrigan, Acting Counsel, for Public Utility Commission, appellee.
Ernest R. von Starck, with him Samuel G. Miller, Assistant General Counsel, and Vincent P. McDevitt, General Counsel, for electric company, intervenor, appellee.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
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The Delaware River Port Authority is a public corporate instrumentality with powers conferred upon it by a compact between the Commonwealth of Pennsylvania and the State of New Jersey pursuant to enabling legislation of both States.*fn1 In the compact the Authority, (as we shall refer to it) with the consent of the Congress of the United States*fn2 was empowered to construct a bridge for vehicular traffic across the Delaware River. The construction of the bridge with the approaches, in which the Authority is now engaged, constitutes a major highway project more than 6 miles in length and costing more than 90 millions of dollars. With the approaches it extends westwardly from a connection with Black Horse Pike in Camden County, New Jersey, across the Delaware River to a point near Twenty-eight Street and Vare Avenue in the City of Philadelphia. The suspension bridge itself is approximately 3,400 feet in length, crossing the river from Gloucester, New Jersey, to a point near the intersection of Packer and Delaware Avenues in Philadelphia. On the Pennsylvania side the approach to the bridge, for the most part an elevated highway, will be about three miles in length and will cross above grade over a number of important streets in Philadelphia. At a point in the city about 972 feet west of the western anchorage of the bridge the elevated approach will cross Delaware Avenue about 57 feet above street level. In the bed of Delaware Avenue were located the tracks of the Schuylkill East Side Railroad Company, operated by The Baltimore and Ohio Railroad Company, and tracks
[ 180 Pa. Super. Page 318]
of The Pennsylvania Railroad. In addition to the railroad tracks in the bed of Delaware Avenue, and within the crossing limits, there were two 13,200 volt aerial transmission lines of the Philadelphia Electric Company, also a six inch water main and signal conduits of The Pennsylvania Railroad Company as well as an electric line of the City of Philadelphia which was carried on the Electric Company's poles. All of these utility facilities have had to be relocated to make way for a pier supporting the bridge approach. It was the Authority and not the city which directed the Philadelphia Electric Company to move its facilities.
The Authority agreed to reimburse the City of Philadelphia for the expense incident to changing the location of the city's existing aerial transmission line and agreed to compensate both railroads for the costs incurred by them in relocating their tracks in the crossing. In addition the Authority agreed to pay to The Pennsylvania Railroad the cost of relocating its water main and signal conduits, amounting to about $34,000. The Authority however refused to pay the cost, estimated at $31,000, of relocating the Philadelphia Electric Company lines in the crossing, for the reason asserted that it had been advised by its counsel that it is not liable for the expenditure as a matter of law. The relocation costs of Philadelphia Electric Company at other crossings, raising the same questions, will be before the Commission in other proceedings which will involve additional expenditures of a total of about $289,000. To put this and other questions at rest in the relocation of facilities then in the bed of Delaware Avenue, the Delaware River Port Authority on June 25, 1954, petitioned the Pennsylvania Public Utility Commission under § 409 of our Public Utility Code of May 28, 1937, P.L. 1053, as amended, 66 PS § 1179, for "... approval of the construction of a crossing where that
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part of the Delaware River Bridge constructed as proposed will cross above the grade of the tracks of The Pennsylvania Railroad Company located in the bed of Delaware Avenue approximately 85' south of the intersection of Delaware and Packer Avenues, in the City of Philadelphia, and the allocation of the costs and expenses incident there to." (Emphasis added). Section 411 of the Code, 66 PS § 1181, provides that the Commission shall determine how costs shall be allocated. The Public Utility Commission after full hearing approved the application of the Authority for the crossing over Delaware Avenue in accordance with the plans submitted by it and as to Philadelphia Electric Company, the Commission ordered that the relocation of its facilities be made "at the sole ...