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DEPARTMENT HIGHWAYS v. PENNSYLVANIA PUBLIC UTILITY COMMISSION. (03/21/62)

March 21, 1962

DEPARTMENT OF HIGHWAYS, APPELLANT,
v.
PENNSYLVANIA PUBLIC UTILITY COMMISSION.



Appeal, No. 6, March T., 1962, from order of Pennsylvania Public Utility Commission, No. 14577, in case of Department of Highways of the Commonwealth of Pennsylvania v. The Pennsylvania Public Utility Commission. Order affirmed.

COUNSEL

Nelson M. Galloway, Assistant Attorney General, with him John R. Rezzolla, Jr., Chief Counsel, and David Stahl, Attorney General, for Pennsylvania Department of Highways, appellant.

Miles Warner, Assistant Counsel, with him Joseph I. Lewis, Chief Counsel, for Pennsylvania Public Utility Commission, appellee.

Allen Lesley, with him H. Merle Mulloy, for railroad, intervening appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

[ 197 Pa. Super. Page 352]

OPINION PER CURIAM

This is an appeal by the Department of Highways of the Commonwealth of Pennsylvania (hereinafter called "Department") from an order of the Pennsylvania Public Utility Commission, dated February 20, 1961, refusing the Department's petition of August 12, 1959, seeking amendment and modification of the final order of the commission of April 21, 1958. This order allocated against the Department 96.5 per cent of the cost of reconstructing a railroad bridge of the Reading Company across the state highway in Lower Gwynedd Township, Montgomery County.

The original order of allocation by the commission was dated June 2, 1952. It directed Reading Company

[ 197 Pa. Super. Page 353]

    to do the work and provided that it should be reimbursed by the Department of Highways, the County of Montgomery, and Lower Gwynedd Township to the extent of 25, 18, and 3 per cent, respectively. The actual cost of the bridge reconstruction was $434,881.46 for portions of which amount Reading Company was reimbursed in accordance with the commission's order of June 2, 1952. Reading Company filed a petition on July 7, 1956, asking the commission to reopen the proceeding and modify the commission's order of allocation of June 2, 1952, on the ground that the Department had initiated a project with the Federal Bureau of Public Roads for an allocation of federal funds. After hearing on Reading Company's petition, the commission, by its order of April 21, 1958, reallocated the costs of construction of the crossing improvement, and directed the Department to pay Reading Company, the County of Montgomery, and Lower Gwynedd Township the sums of $220,000, $75,000, and $12,000, respectively.

On May 9, 1958, the Department filed a petition under section 1006 of the Public Utility Law of May 28, 1937, P.L. 1053, 66 PS § 1396, for rehearing and modification of the commission's order of April 21, 1958, on the ground that the application for federal funds covered only highway construction in the vicinity of the crossing site, and did not include any of the cost of the new railroad bridge. By letter dated July 16, 1958, and received on July 17, 1958 the commission refused the Department's petition of May 9, 1958, for rehearing. The Department, on August 18, 1958, appealed to this Court. In Department of Highways v. Pennsylvania Public Utility Commission, 189 Pa. Superior Ct. 111, 115, 149 A.2d 552, by opinion dated March 18, 1959, we held that the appeal was not taken within the thirty-day limitation, and quashed the appeal. The Department's petition for allocatur was refused by the Supreme Court of Pennsylvania on June 18, 1959.

[ 197 Pa. Super. Page 354]

Thereafter, the Department, on August 12, 1959, filed a petition under the provisions of section 1007 of the Public Utility Law of May 28, 1937, P.L. 1053, 66 PS § 1397, asking the commission to reopen, rehear, and reallocate the construction costs of this railroad bridge in Lower Gwynedd Township. The Department's petition of August 12, 1959, reiterated certain averments contained in its previous petition filed under section 1006, and set forth in general and indefinite terms certain additional allegations which purportedly constituted new facts and changed conditions which would warrant reopening of the reallocation order of April 21, 1958. In summary, the Department's petition to reopen under section 1007 alleged that the Department actually constructed 2,709.91 more linear feet of highway than the 4,207.19 feet over which the commission assumed jurisdiction, and that the total federal funds received for all highway construction at this point were $227,142.10, or $79,857.90 less than the supplemental allocation of $307,000 imposed by the commission in its order of April 21, 1958. It was further alleged that the allocation order "most harshly and grievously penalized the Department of Highways and imposed a burden upon the highway construction moneys collected by the Commonwealth of Pennsylvania." The petition also contained various broad and indefinite averments to the effect that serious and material difficulties had developed since January 1, 1959, "with the result that there is no present expectation in the Department of Highways that the Federal ...


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