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COMMONWEALTH PENNSYLVANIA v. COMMONWEALTH PENNSYLVANIA (05/21/74)

decided: May 21, 1974.

COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA PUBLIC UTILITY COMMISSION, PLAINTIFF, AND COUNTY OF BLAIR, CITY OF ALTOONA AND TOWNSHIP OF LOGAN, INTERVENING PLAINTIFFS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DEFENDANT



Original Jurisdiction in case of Pennsylvania Public Utility Commission v. Commonwealth of Pennsylvania, Department of Transportation.

COUNSEL

R. Knickerbocker Smith, Jr., Assistant Counsel, with him Edward Munce, Acting Counsel, for plaintiff.

Marion D. Patterson, Jr., N. John Casanave and Bertram Leopold, for intervening plaintiffs.

Herbert G. Zahn, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, for defendant.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman.

Author: Bowman

[ 13 Pa. Commw. Page 556]

This original jurisdiction case is before us on preliminary objections filed by the Pennsylvania Department of Transportation (PennDOT) to a complaint in mandamus filed by the Pennsylvania Public Utility

[ 13 Pa. Commw. Page 557]

Commission (PUC) seeking to enforce compliance with an outstanding PUC order dated May 23, 1972, against PennDOT. This order required PennDOT to undertake, at its initial cost and expense, a program of inspection of the Eighth Street-Juniata Bridge in Logan Township, Blair County, in order to determine the structural adequacy and load-carrying capacity of said bridge. Also, PennDOT was directed to undertake a corridor study*fn1 of the affected area at its initial cost and expense. This order was served on PennDOT on May 26, 1972.

The May 23, 1972, order of the PUC was not appealed from as provided by law, but the substance of that order was the subject of appeal in a companion case docketed to No. 1197 Commonwealth Docket 1973. That appeal was quashed upon motion by the PUC in Pennsylvania Department of Transportation v. Public Utility Commission, 13 Pa. Commonwealth Ct. 550, 320 A.2d 403 (1974), filed simultaneously herewith.*fn2

The narrow issue now before us is whether the PUC may properly proceed against PennDOT in mandamus to compel compliance with its May 23, 1972, order. Resolution of this issue requires construction of the statute which the PUC asserts gives it authority to institute the instant mandamus proceedings.

PUC relies on Section 903 of the Public Utility Law, Act of May 28, 1937, P.L. 1053, art. IX, as amended, 66 P.S. ยง 1343 (Supp. 1973-1974). It provides: "Whenever the commission shall be of opinion ...


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