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APPLICATION DEPARTMENT TRANSPORTATION COMMONWEALTH PENNSYLVANIA FOR APPROVAL ALTERATION CROSSING WHERE STATE HIGHWAY ROUTE 67045 v. COMMONWEALTH PENNSYLVANIA (03/23/77)

decided: March 23, 1977.

APPLICATION OF THE DEPARTMENT OF TRANSPORTATION OF THE COMMONWEALTH OF PENNSYLVANIA FOR APPROVAL OF THE ALTERATION OF THE CROSSING WHERE STATE HIGHWAY ROUTE 67045, SECTION 9 (VINE STREET EXPRESSWAY) CROSSES ABOVE THE GRADE OF THE TRACKS OF THE BROAD STREET SUBWAY IN THE CITY OF PHILADELPHIA, AND THE ALLOCATION OF THE COSTS AND EXPENSES INCIDENT. PENNSYLVANIA PUBLIC UTILITY COMMISSION, COMMONWEALTH OF PENNSYLVANIA
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, APPELLANT; PHILADELPHIA ELECTRIC COMPANY, INTERVENING APPELLEE; BELL TELEPHONE COMPANY OF PENNSYLVANIA, INTERVENING PARTY APPELLEE; CITY OF PHILADELPHIA, INTERVENING PARTY APPELLANT



Appeal from the Orders of the Pennsylvania Public Utility Commission in case of In Re: Application of the Department of Transportation of the Commonwealth of Pennsylvania for approval of the alteration of the crossing where State Highway Route 67045, Section 9 (Vine Street Expressway) crosses above the grade of the tracks of the Broad Street Subway, in the City of Philadelphia, and the allocation of the costs and expenses incident thereto, Docket No. 97404; orders dated April 17, 1974, March 25, 1975, and May 5, 1976.

COUNSEL

Louis G. Cocheres, Assistant Attorney General, with him Herbert G. Zahn, Assistant Attorney General, and Robert W. Cunliffe, Deputy Attorney General, for appellant.

Candace N. Kreiger, Assistant Counsel, with her Edward J. Morris, Counsel, and John B. Wilson, Assistant Counsel, for appellee.

R. B. Kunkel, with him Raymond F. Scully, for intervening appellee, Bell Telephone Company.

Rudolph A. Chillemi, with him Edward G. Bauer, Jr., and Eugene J. Bradley, for intervening appellee,

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

Author: Blatt

[ 29 Pa. Commw. Page 370]

The Pennsylvania Department of Transportation (PennDOT) has appealed to this Court from a denial by the Pennsylvania Public Utility Commission (PUC) of its petition "for a clarification and modification of orders." The intervening appellees*fn1 have filed motions to quash the appeal as having been untimely taken.

In 1972, PennDOT filed an application with the PUC which requested its approval of a plan for the alteration of Vine Street in the City of Philadelphia. On April 22, 1973, the PUC entered a 23-page "Interim Order" which approved the project and provided that a future order would issue allocating the costs and future maintenance of the project. No appeal was taken from this order. On March 31, 1975, pursuant to PennDOT's request, the PUC entered a 20-page order which, in part, allocated the costs of the project. Instead of filing an appeal from the entry of this order pursuant to Section 1101(a) of the Public Utility Law*fn2 (Law), 66 P.S. § 1431(a), PennDOT, on April 16, 1975, filed a petition "for clarification and modification of orders" with the PUC. The PUC subsequently held a hearing and, on May 12, 1976, entered an order which denied the petition. This appeal followed.

[ 29 Pa. Commw. Page 371]

The narrow issue before us is whether or not PennDOT's petition was, as it claims, in fact and in law a petition for rehearing under Section 1006 of the Law, 66 P.S. § 1396, which provides, in part, as follows:

After an order has been made by the commission, any party to the proceedings may, within fifteen days after the service of the order, apply for a rehearing in respect of any matters determined in such proceedings and specified in the application for rehearing, and the commission may grant and hold such rehearing on such matters. No application for a rehearing shall in anywise operate as a supersedeas, or in any manner stay or postpone the enforcement of any existing order, except as the commission may, by order, direct. If the application be granted, the commission may affirm, rescind, or modify its original order. Any order so made after such rehearing shall have the same force and effect as an original order.

If the petition was an application for rehearing, then the appeal period provided in Section 1101(a) of the Law was tolled and PennDOT's appeal to this Court is timely; if not, the running of the appeal period was not tolled and this appeal is untimely. Mobilfone, Inc. v. ...


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