September 29, 1958
DELAWARE RIVER PORT AUTHORITY, APPELLANT,
PENNSYLVANIA PUBLIC UTILITY COMMISSION.
Appeals, Nos. 214, 215, 216, 217, 218 and 219, Jan. T., 1958, from order of Superior Court of Pennsylvania, Appeals, Nos. 113-118, inclusive, Oct. T., 1957, affirming Pennsylvania Public Utility Commission's orders, November 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 reversed; reargument refused November 5, 1958.
Morris Duane, with him Henry T. Reath, John B. Felton, and Duane, Morris & Heckscher, for appellant.
Miles Warner, Assistant Counsel, with him Jack F. Aschinger, Assistant Counsel, and Thomas M. Kerrigan, Counsel, Pennsylvania Public Utility Commission, appellee.
Ernest R. von Starck, with him Samuel Graff Miller, Vincent P. McDevitt, and Morgan, Lewis & Bockius, for Philadelphia Electric Company, intervening appellee.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
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OPINION BY MR. JUSTICE BENJAMIN R. JONES
These six appeals challenge an order of the Superior Court*fn1 which affirmed an order of the Pennsylvania Public Utility Commission placing upon the Delaware River Port Authority (herein called the Authority) the entire cost of relocating certain facilities of the Philadelphia Electric Company (herein called the Electric Company).
The problems which these appeals present arise from the construction by the Authority of the Walt Whitman bridge which spans the Delaware River between Philadelphia and Gloucester, N.J.*fn2 The order of the Commission presently attacked arose from six applications to the Commission under § 409 of the Public Utility Code, Act of May 28, 1937, P.L. 1053, 1075, 66 PS §§ 1101, 1179, which requires Commission approval of the construction, alteration, relocation or
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abolition of any highway-rail crossing.*fn3 Compliance with the order made pursuant to these applications and with the general over-all plans of the Authority for the construction of the bridge and its westerly approaches required the Electric Company to relocate certain of its facilities which were located in or over public streets under standard rent-free licenses from the City of Philadelphia.*fn4 The Commission placed the entire cost of such relocation of the Electric Company's facilities upon the Authority. From a unanimous affirmance of this order and allocation of costs by the Superior Court, we granted an allocatur.
The Authority attacks the Commission's order in three principal respects: (1) that the Commission lacked the authority to allocate the costs of relocating non-transportation utility facilities as an incident to a highway-rail crossing construction, abolition or relocation;
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(2) that, even if such authority be conceded, the Commission exceeded its jurisdiction in some of the factual situations presented in this case; and (3) that, in any event, the Commission committed an abuse of discretion in placing the entire cost of the relocation upon the Authority.
Initially, the power of the Commission to allocate costs in highway-rail crossing situations must be considered. In so doing we must bear in mind that the Commission's authority must either arise from the express words of the statute or by strong and necessary implication therefrom. As President Judge RHODES aptly said in West Penn Railways Company v. Pennsylvania Public Utility Commission, 135 Pa. Superior Ct. 89, 99, 4 A.2d 545: "The area of administrative activity is not boundless; the commission's power is statutory; and the legislative grant of power to act in any particular case must be clear (Day v. Public Service Commission et al., 312 Pa. 381, 384, 167 A. 565)."
The extent of the Commission's authority and jurisdiction to act must be found within Sections 409-412, inclusive, of the Public Utility Code, supra. Section 409(a) prohibits certain acts without a "prior order" of the Commission: (1) the construction*fn5 by a certain type of public utility - a utility engaged in the transportation of passengers or property, i.e. a railroad or railway - of its facilities across the facilities of another railroad or railway or across a highway, either at, above or below grade; (2) the construction of a highway across the facilities of a railroad or railway, (3) the alteration, relocation or abolition of any crossing constructed under (1) and (2), supra. Section 409(b) vests in the Commission the "exclusive power"
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to: (1) appropriate property for any such crossing; (2) approve the manner of construction, alteration, relocation, or abolition of such crossing; (3) regulate the maintenance, operation and protection of such crossing "to effectuate the prevention of accidents and the promotion of the safety of the public". Section 409(c) vests "exclusive power" in the Commission, on its own motion or on complaint, to order a constructed crossing to be relocated, altered or abolished, and, in so doing, may open new highways to connect such crossing with an existing highway or make the crossing more available to public use or vacate or abandon highways rendered unnecessary for public use by the construction, relocation or abandonment of such crossings; the Commission may order the work done by any public utility or municipal corporation concerned or by the Commonwealth. Section 409(d) outlines the procedure to be followed where property is appropriated by the Commission. Section 410 gives the Commission the power to order the removal of all structures within the lines of the appropriation.
Section 411 must be read in connection with Section 409; the former relates exclusively to the subject matter of the latter. The Electric Company urges that the Commission's statutory authority for the allocation of the relocation costs of facilities of a non-transportation utility is found in the phrase "expense of such construction ..." in Section 411 and that the Legislature intended to include a non-transportation utility's relocation costs as an expense of the construction, the relocation or the abolishment of a highwayrail crossing.
Section 411 provides the method of determining reimbursement in highway-rail crossing cases and provides for reimbursement in two separate and distinct classes of cases. It first provides for the determination
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of the compensation to be paid as damages to owners of adjacent property taken, injured or destroyed. It them provides: "... Such compensation, as well as the expense of such construction, relocation, alteration, protection, or abolition of any crossing, shall be borne and paid, as hereinafter provided, by the public utilities or municipal corporations concerned, or by the Commonwealth, in such proper proportions as the commission may, after due notice and hearing, determine, unless such proportions are mutually agreed upon and paid by the interested parties." Section 412 significantly empowers the Commission on its own motion or complaint, to prescribe the service and facilities, including the "crossing of facilities", standards, classifications, regulations and practices to be furnished and followed by "any or all public utilities", as contrasted with the limited description of utilities in § 409 and § 411.
Historically, in Pennsylvania, non-transportation public utilities have been permitted to occupy highway rights-of-way free of cost, subject and subordinate to the State's police power to control and regulate the highways for the benefit of the public. Delaware River Joint Commission Case, 342 Pa. 119, 19 A.2d 278; Philadelphia Electric Company v. Commonwealth, 311 Pa. 542, 166 A. 892; Scranton Gas and Water Co. v. Scranton City, 214 Pa. 586, 64 A. 84; Philadelphia Suburban Water Co. v. Pennsylvania Public Utility Commission, 168 Pa. Superior Ct. 360, 78 A.2d 46; Bell Telephone Company of Pennsylvania v. Pennsylvania Public Utility Commission, 139 Pa. Superior Ct. 529, 12 A.2d 479; Springfield Water Co. v. Phila. & Garrettford Ry., 45 Pa. Superior Ct. 516. Such utilities obtain no property rights in the highway and can be ordered by a competent state or municipal agency to relocate their facilities at their own expense (Delaware
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cannot agree. A legislative intent to effect any departure from a firmly established policy of the law must be expressed in clear and unequivocal language. Wellsettled and established principles of law are not to be regarded as changed unless the terms of the new legislation unmistakably and unambiguously indicate such a change. "In the absence of express declaration, the law presumes that the act did not intend to make any change in the common law, for if the legislature had that design they would have expressed it. Petit v. Fretz's Executor, 33 Pa. 118": Buradus v. Gen. Cement Prod. Co. et al., 159 Pa. Superior Ct. 501, 506, 48 A.2d 883 [citing cases].
An examination of § 409 and § 411 does not reveal any, let alone a clear, legislative intent to change the well-settled policy of the law that non-transportation public utilities must bear the expenses of relocating their facilities when the relocation is brought about by governmental exercise of the police power such as in construction, relocation, alteration, protection or abolition of a highway-rail crossing. Sections 409 and 411 refer exclusively and solely to highway-rail crossings; the authority which § 411 vests in the Commission to allocate "the expense of such construction, relocation, alteration, protection or abolition of any crossing" is limited and restricted to those expenses which have been incurred by the railroad, railway or the owners of the highway, i.e., the State, state agency, or municipal corporation. To hold that the Commission has the authority to allocate the expenses of relocating facilities of a non-transportation utility is to ignore the manifest limitation and restriction of the subject matter of § 409 and § 411, render meaningless the provisions
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of § 412 and effect a complete change in the long established policy of the common law on the subject without any expressed legislative intent to effect such a change. The general rule has always been that the Commonwealth or its agency cannot be required to bear the costs of relocating facilities of any public utility. The only exception to this rule is that imposed by the Legislature in § 411: that the Commonwealth may, in the discretion of the Commission, be required to pay the relocation costs of the facilities of a transportation public utility (as described in § 409) and only then when such costs have been expended in the construction, relocation, alteration, protection or abolition of a highway-rail crossing accomplished under the procedure prescribed in § 409. The Electric Company and the Commission would have this Court usurp the legislative powers and declare an additional exception which the Legislature has not seen fit to declare. In the absence of a clearly expressed legislative intent in § 411 to impose on the Commonwealth an obligation, in the Commission's discretion, to pay the relocation costs of a non-transportation public utility in any high-way-rail crossing construction, etc. and under § 409, we must follow not only the well established, but thoroughly logical, rule of the common law as enunciated by this Court for many years.
In In re Elimination of Highway Railroad Crossing in Town of Cheeektowaga, Erie County, 259 App.Div. 141, 18 N.Y.S.2d 613, aff'd. mem. 283 N.Y. 687, 28 N.E.2d 409, the New York Courts were faced with a contention somewhat similar to that presently advanced. An amendment to the statute provided that the expense of any grade crossing elimination should include "incidental improvements connected therewith". The utility there argued that this provision was intended to include the cost of the relocation of
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its water mains made necessary by a grade crossing elimination. The Court stated: "Prior to the constitutional amendment, the common-law obligation of a utility to relocate its own structures at its own expense in connection with a grade crossing elimination program was definitely declared. Transit Commission v. Long Island R. Co., 253 N.Y. 345, 171 N.E. 565. That common-law obligation continues until the Constitution and statute expressly provide otherwise. The common law must be held no further abrogated than the clear import of the language used absolutely requires. Transit Commission v. Long Island R. Co., supra; Bertels v. Nunan, 92 N.Y. 152, 153, 158, 44 Am.Rep. 361. We find no express direction in the Constitution or in the Enabling Act that relieves the appellant of its common-law obligation."
The Electric Company, however, argues that, since the prior public utility law contained an express prohibition against the payment of utilities for relocation costs,*fn8 the legislative failure to re-enact this provision in § 411 demonstrates, by negative implication, that the Legislature intended that such expenditures were no longer to be borne by such utilities. While settled law cannot and should not be overridden by any such negative implication, it might be noted that the prior law also contained a provision that payments made by the Commonwealth or municipality were not to be included
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within the rate base of any utility.*fn9 Although this provision was also omitted from § 411, such omission does not manifest a legislative intent to include such payments under the present law. The Electric Company ignores the alternative argument that the obligation of a non-transportation utility to bear its own relocation costs was so generally recognized and accepted that it was unnecessary to re-enact it in the present law.*fn10 In any event, as stated by the Court in Western New York Water Co. v. Brandt, 259 App.Div. 11, 18 N.Y.S.2d 128, 133, appeal dism., 283 N.Y. 686, 28 N.E.2d 408: "At the time of the adoption of the amendment in question a utility was required to bear the expense of relocating its main. The new provision should be construed as not abolishing the established law in the absence of a specific declaration to that effect." (Emphasis supplied).
Two recent decisions of our Superior Court are regarded as supporting the conclusion reached by that Court in the present case: Delaware River Port Authority v. Pennsylvania Public Utility Commission, 180 Pa. Superior Ct. 315, 119 A.2d 855, allocatur refused, 180 Pa. Superior Ct. xxix; Philadelphia Suburban Water Co. v. Pennsylvania Public Utility Commission, supra. In the Delaware case, the Court assumed without discussion the Commission's authority to allocate the
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cost to the Commonwealth. In the Philadelphia Suburban Water case, supra, although there is dicta indicating that the Commission could impose the cost of relocating the facilities upon the Commonwealth, the specific holding therein sustained the Commission's allocation of the costs to the private utility. There was nothing decided in either of those cases inconsistent with the views herein expressed.
Section 411 does not empower the Commission to impose upon the Commonwealth, or its agent, the Authority, the costs of relocating the facilities of non-transportation utilities. In the absence of any express and clear statutory language, we cannot surmise that the Legislature intended to abrogate the long and established rule of law on this subject.
In view of our conclusions that the Commission lacked the statutory authority to make this order, it is unnecessary to discuss the Authority's other arguments.
Order reversed. The record is remanded to the Commission for action not inconsistent with the views expressed in this opinion.
ING OPINION BY MR. JUSTICE BELL:
The Pennsylvania Public Utility Commission, after hearing, entered an order allocating costs of relocation of certain facilities against the Delaware River Port Authority. The order of the Public Utility Commission was affirmed by a unanimous Superior Court in an opinion written by Judge HIRT.
The Superior Court affirmed the Commission's findings that the Electric Company moved a number of its facilities upon the order of the Authority in connection with the abandonment and relocation of railroad tracks due to the Authority's bridge approach.
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The abolition of the crossings and the relocation of the railroad tracks were the direct consequence of the construction by the Authority of the westerly approach to the Delaware River Bridge. The other crossing alterations and the affected facilities were found to be part and parcel of the same indivisible bridge project.
The Court said, inter alia (page 286): "... the fact is important that the abolition of the crossings, ordered by the Authority was for the benefit of the Authority alone and not the railroads nor of the electric utility. ... [and] It would be most inequitable to put these costs, where they ultimately would rest, upon the rate payers of the Electric Company" instead of on the Authority.
Notwithstanding the able argument of counsel for the Authority and the able opinion of Mr. Justice JONES, I believe that the Superior Court was correct and I would affirm on the opinion of Judge HIRT.