Appeal from order of Court of Common Pleas of Dauphin County, No. 242 Commonwealth Docket, 1968, in case of Warminster Township Municipal Authority v. Department of Highways, Commonwealth of Pennsylvania et al.
Thomas A. Beckley, with him R. W. Russel Hoerner, and Shearer, Mette & Hoerner, for appellant.
Reynold J. Kosek, Assistant Attorney General, with him John R. Rezzolla, Deputy Attorney General, and William C. Sennett, Attorney General, for Commonwealth, appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell dissents. Dissenting Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice Cohen.
Appellant municipal authority owns and operates certain sewage and waterworks facilities which are located within the right of way of a state highway in Bucks County. Appellee, the State Department of Highways, in connection with the widening of that highway, ordered appellant to relocate its facilities and offered to pay fifty percent of the cost of such relocation. This offer was rejected as unacceptable to appellant, and appellant and appellee were unable to agree upon an acceptable figure. Several months after the offer was made and rejected, appellant requested appellee to petition the Pennsylvania Public Utilities Commission for a determination of the costs to be borne by each party. This appellee refused to do, informing appellant that the offer was withdrawn when appellant refused to accept it.
Appellant sought mandamus. Appellee filed preliminary objections in the nature of a demurrer, which were sustained, and the complaint was dismissed. This appeal followed. We reverse.
"Historically, in Pennsylvania, non-transportation public utilities have been permitted to occupy highway rights-of-way free of cost. . . . Such utilities obtain no property rights in the highway and can be ordered by a competent state . . . agency to relocate their facilities at their own expense. . . ." Delaware River Port Authority v. Pennsylvania Public Utility Commission, 393 Pa. 639, 645, 145 A.2d 172, 175 (1958) (citations omitted). By statute, however, the Commonwealth is vested with discretionary power to make payments
for relocation. The Act of June 1, 1945, P. L. 1242, art. IV, § 412.1, as amended, 36 P.S. § 670-412.1, provides: "[T]he department [of highways] may make such . . . relocation as may be required. . . . The department may also enter into agreements with any . . . municipality authority for the sharing in the costs of such . . . relocation. In any case where, in the opinion of the secretary, such costs should be shared by the department and a . . . municipality authority[,] and the department is unable to agree with such . . . municipality authority to a division of the costs, the department may proceed with the work and petition the Pennsylvania Public Utilities Commission for a determination of the costs to be borne by each party."
Appellant argues that although the statute vests complete discretion in the Department of Highways as to whether the costs should be shared, once the secretary makes the decision to share the costs he can no longer withdraw his offer, even if it is rejected as insufficient. At that point, appellant contends, the department and the municipal authority must either agree to a division, or the department "may proceed with the work and petition" the P.U.C. for a determination.
Appellee, on the other hand, urges that once the department's offer has been rejected, the secretary is free to again consider whether costs should be shared. If the secretary then decides to offer nothing, there is obviously no reason for appellant to petition the P.U.C.
Although neither construction of the statute makes perfect sense from a policy standpoint, we believe that appellant's contention is the most sensible. It is true that, given appellant's construction of the statute, the department might feel compelled to adopt a policy of rarely making any offer at all. The initial discretion does clearly rest ...