Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Commonwealth of Pennsylvania v. Delaware and Hudson Railway Company, No. 906 of 1974.
James E. O'Brien, for appellant.
Peter J. Savage, with him Robert J. Kunec, for appellee.
Judges Kramer, Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson.
The facts in this case are not contested. In December 1972, appellant and the Lehigh Valley Railroad, which is not a party to this proceeding, constructed a diagonal cross-over track approximately one-quarter of a mile in length between their respective main tracks in Dupont Borough over vacant lands owned by the railroads. Neither railroad applied for a building permit and both railroads were separately charged with violating Section 9.210 of the Dupont Borough Zoning Ordinance which provides that ". . . no person shall erect, alter or convert any structure or building, or part thereof, nor alter the use of any land . . . until a building permit has been issued. . . ." After a magistrate's hearing, appellant was adjudged guilty and was fined $200.00 and costs. Appellant appealed to the Luzerne County Court of Common Pleas which, after a hearing, denied the appeal. This appeal followed and we reverse.
The sole issue is whether appellant, as a public utility, is required to secure a building permit under the facts in this case.
Appellee argues that if appellant desired exemption from the zoning ordinance, it should have proceeded under Section 619 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10619, which reads:
"This article shall not apply to any existing or proposed building, or extension thereof, used or to be
used by a public utility corporation, if upon petition of the corporation, the Pennsylvania Public Utility Commission shall, after a public hearing, decide that the present or proposed situation of the building in question is reasonably necessary for the convenience or welfare of the public."
Appellee contends that since appellant did not petition the Pennsylvania Public Utility Commission, it is not exempt from the local zoning ordinance.
In Duquesne Light Company v. Monroeville Borough, 449 Pa. 573, 580, 298 A.2d 252, 256 (1972), the Pennsylvania Supreme Court ...