Appeal to the Superior Court of Pennsylvania from the order of the Pennsylvania Public Utility Commission in case of Pennsylvania Public Utility Commission v. Department of Highways et al. Appeal transferred October 20, 1970, to the Commonwealth Court of Pennsylvania.
Gregory J. Dean, with him James E. Meneses, for appellant.
Dominic J. Ferraro, Assistant counsel, with him Edward Munce, Acting Counsel, for appellee.
Harris J. Latta, Jr., for amicus curiae, Penn Central Railroad.
George J. McGonchie, with him Edward H. Huss, for intervening appellee, Philadelphia Suburban Transportation Company.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Rogers. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Manderino.
The issue before the Pennsylvania Public Utility Commission in this case was who should rebuild an overhead bridge on a township road in Upper Merion Township, Montgomery County, where the township road crossed the tracks of the Philadelphia Suburban Transportation Company, and in what proportion the costs should be distributed. Also involved, in addition to the township and Philadelphia Suburban Transportation Company, were the many other named respondents which were public utilities with installations on or in the neighborhood of the bridge that might be affected by the rebuilding, as well as the County of Montgomery and the Department of Transportation of the Commonwealth.
The problem came to the attention of the Public Utility Commission when it became necessary for the Public Utility Commission to order the bridge closed because of its obviously unsafe condition brought about by subterranean subsidence which had resulted from natural causes rather than fault on anyone's part or lack of maintenance.
This appeal was taken by the Township of Upper Merion from the Commission's order of September 9, 1968, which required the Township to provide all material and do all work necessary to reconstruct the bridge. The Township is to be reimbursed by the county for ten percent (10%) of the actual cost and by the Philadelphia Suburban Transportation Company for twenty-five percent (25%) of the actual cost, leaving the Township to bear sixty-five percent (65%) of the actual cost. No other respondent has appealed. However, the Penn Central Company, one of the respondents before
the Commission, has filed a brief as Amicus Curiae, requesting this Court to decide "to whom does a railhighway structure belong?"
We will dispose of Penn Central's question first. This Court does not propose to answer abstract questions which are not an issue before this Court. Penn Central does not claim title to the bridge nor has Penn Central been called upon to contribute directly to its reconstruction. Indeed, from the record it would appear that none of the respondents claim title. The superstructure of the bridge now being reconstructed was built and paid for in 1960 by Bethlehem Mines ...