Appeal, No. 42, March T., 1959, from order of Pennsylvania Public Utility Commission, Application No. 84173, in case of Department of Highways of the Commonwealth of Pennsylvania v. Pennsylvania Public Utility Commission et al. Motion to dismiss denied; order affirmed.
Nelson M. Galloway, Assistant Attorney General, with him Michael J. Stack, Jr., Deputy Attorney General, John R. Rezzolla, Jr., Chief Counsel, and Anne X. Alpern, Attorney General, for Department of Highways, appellant.
Miles Warner, Assistant Counsel, with him Thomas M. Kerrigan, Counsel, for Pennsylvania Public Utility Commission, appellee.
W. Russell Hoerner, with him Paul H. Rhoads, Russell G. Weidner, and Ruth, Weidner, Woerle & Yoder, and Rhoads, Sinon & Reader, for borough, intervening appellee.
Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.
The Department of Highways has appealed from the order of the Pennsylvania Public Utility Commission wherein the commission has determined and ordered a certain cost allocation for water mains required to be relocated in connection with the construction of a highway.
The Department of Highways in 1956 was in the process of constructing a portion of State Highway
Route 285 (U.S. Route 22) as a limited-access highway in Windsor Township and the Borough of Hamburg, Berks County. This highway improvement was undertaken with the aid of Federal funds. In connection with said construction in Windsor Township, a new bridge was constructed to carry the new limited access highway over and above Windsor Township Road No. 808 as relocated. Two water mains owned by the Borough of Hamburg had been located within the shoulders of the old road at a depth of approximately three and a half feet. One, an 8-inch water line was located in the westerly shoulder and the other, a 12-inch line was located in the easterly shoulder of said road. In connection with the relocation of this road, the Department of Highways, through its contractor, constructed 1,523 feet of 8-inch water line in the westerly shoulder of the relocated road, and 1,536 feet of 12-inch water line in the easterly shoulder. New pipe was used throughout and the existing mains were abandoned in place by the Department. The cost of such water main construction was $33,334.53.
On February 21, 1957, the Department of Highways filed a petition with the commission, pursuant to the authority contained in section 412.1 of the State Highway Law, 36 P.S. 670-412.1, requesting the commission to determine the cost of such construction to be borne by each party. The petition further stated that the Department was of the opinion that the costs should be shared by it and the Borough of Hamburg but that the Department and the Borough could not agree on a division of costs. On May 27, 1957, a hearing was held at which only the Department and the Borough appeared with counsel. After the testimony was closed ...