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DELAWARE RIVER PORT AUTHORITY v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (07/29/57)

July 29, 1957

DELAWARE RIVER PORT AUTHORITY, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeals, Nos. 113, 114, 115, 116, 117, 118, Oct. T., 1957, from orders of Pennsylvania Public Utility Commission, Nov. 19, 1956, Application Docket Nos. 81587, 81591, 81592, 81593, 81671, and 81672, in case of Delaware River Port Authority v. Pennsylvania Public Utility Commission et al. Order affirmed.

COUNSEL

Morris Duane and Henry T. Reath, with them John B. Felton, and Duane, Morris & Heckscher, for Delaware River Port Authority, appellant.

Miles Warner, Assistant Counsel, with him Thomas M. Kerrigan, Acting Counsel, for Public Utility Commission, appellee.

Ernest R. von Starck, with him Samuel Graff Miller, Assistant General Counsel, and Vincent P. McDevitt, General Counsel, for Philadelphia Electric Company, intervening appellee.

Before Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ. (rhodes, P.j., absent).

Author: Hirt

[ 184 Pa. Super. Page 282]

OPINION BY HIRT, J.

Much of the general discussion in our opinion in Delaware River Port Authority v. Pa. P.U.C., 180 Pa. Superior Ct. 315, 119 A.2d 855, is relevant here as a statement of the background of the present appeals. In that prior proceeding the removal of two aerial transmission lines of Philadelphia Electric Company, from Delaware Avenue at the Packer Street crossing in Philadelphia, was made necessary to make way for the construction of a pier to support the approach to the structure, now known as the Walt Whitman Bridge. In that proceeding the Pennsylvania Public Utility Commission had assessed the cost of removing and relocating electric facilities, on the Authority. The Commission clearly had jurisdiction of the controversy, and in the above appeal we affirmed the order. The present six appeals are from a consolidated order of the Commission which similarly, and in applying like principles, ordered the Authority to pay the costs of removal and relocation of facilities of Philadelphia Electric Company including those at eleven additional streets crossed by the approach to the bridge, made necessary by the construction of the approach. In this, a sequel to the prior proceedings, the Commission in allocating the relocation costs, clearly had jurisdiction, and by the application of principles, which we found to be controlling in the Delaware Avenue appeal, supra, the present order must be affirmed.

[ 184 Pa. Super. Page 283]

The area acquired by the Authority, which is now occupied by the bridge approach is located a short distance north of, and parallel with, Packer Avenue over the former bed of the tracks of the Pennsylvania Railroad, the Baltimore and Ohio Railroad operating the Schuylkill River East Side Railroad. These tracks ran west from Delaware Avenue in a straight line across Philadelphia to Twenty-fifth Street. Accordingly there were in fact crossings of railroad tracks by the approach, throughout its entire length in the area with which we are concerned, including rail crossings at Swanson Street and Stonehouse Lane. There were also crossings of trolley tracks of the Philadelphia Transportation Company at Seventh and Tenth Streets which are involved in the present appeals.

In accordance with an agreement entered into with the Authority the railroads filed applications with the Commission, the subject matter of four of the present appeals, which together requested permission to abandon their tracks at the crossings at Swanson Street; at Moyamensing Avenue; at Broad Street and at crossings in other intersections from Seventh to Twentieth Streets, inclusive. At Seventh Street and at Tenth Street the Authority applied to the Commission for approval of the construction of crossings of the Philadelphia Transportation Company tracks. As to what party made the application in raising the issues, however, is unimportant. The removal of the railroad tracks and their relocation were approved by the Commission, and as required by the Act of July 9, 1919, P.L. 814, 36 PS ยง 3425 the Authority reimbursed the railroads for their entire relocation costs. At the time of these applications the Electric Company had a 2400 volt transmission line partly in Packer Avenue and partly in the railroad rights-of way, extending from a point east of Swanson Street, westwardly to Seventh

[ 184 Pa. Super. Page 284]

Street; the Company also had distribution and street lighting lines in the crossings at Stonehouse Lane, Seventh and Tenth Streets, Broad Street, and at the other rail crossings from Fifteenth to Twentieth Streets. It was upon the order of the Authority that the Electric Company moved its facilities and this the ...


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