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PHILADELPHIA SUBURBAN WATER COMPANY v. COMMONWEALTH PENNSYLVANIA (06/07/78)

decided: June 7, 1978.

PHILADELPHIA SUBURBAN WATER COMPANY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION ET AL., RESPONDENTS



Original jurisdiction in case of Philadelphia Suburban Water Company v. Pennsylvania Department of Transportation and William H. Sherlock, Secretary, Pennsylvania Department of Transportation, and State Treasurer of Pennsylvania.

COUNSEL

William E. Zeiter, with him Thomas C. Sadler, Jr., and, of counsel, Morgan, Lewis & Bockius, for petitioner.

George D. Wenick, Assistant Attorney General, with him Herbert G. Zahn, Assistant Attorney General, and Robert W. Cunliffe, Deputy Attorney General, for respondents.

Harvey S. Miller, Assistant Counsel, with him John B. Wilson, Assistant Counsel, and Kathleen Herzog Larkin, Counsel, for respondent, P.U.C.

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

Author: Bowman

[ 36 Pa. Commw. Page 10]

By these proceedings addressed to our original jurisdiction under Section 401 of the Appellate Court Jurisdiction Act of 1970 (ACJA), Act of July 31, 1970, P.L. 673, as amended, 17 P.S. ยง 211.401, Philadelphia Suburban Water Company (petitioner) seeks a writ of mandamus to enforce an order of the Pennsylvania Public Utility Commission (PUC), purporting to allocate between petitioner and the Pennsylvania Department of Transportation (PennDOT) the cost of relocating a water main owned by petitioner, said relocation allegedly having been necessitated by PennDOT's construction of a new highway crossing.

Before us are the preliminary objections of PennDOT to petitioner's amended petition for review, petitioner's answer to said preliminary objections, petitioner's motion for "summary judgment," PennDOT's motion to strike said motion and petitioner's answer thereto, the preliminary objections of the PUC in the nature of a motion to quash PennDOT's preliminary objections and the PUC's answer to said preliminary objections.

The facts, as revealed by petitioner's amended petition for review and petitioner's unanswered requests for admissions, Pa. R.C.P. No. 4014, in addition to the opinions and orders of the PUC at Application Docket No. 96424, dated December 19, 1972 and August 6, 1974, relating to PennDOT's application for the aforementioned construction, may be stated as follows:

PennDOT's application before the PUC sought approval for a proposed abolition and reconstruction of a crossing, above grade, at the intersection of Bustleton and Philmont Avenues in Philadelphia, and the allocation of costs and expenses incident thereto.

At the hearing on PennDOT's application, several public utilities, including petitioner, appeared and

[ 36 Pa. Commw. Page 11]

    offered testimony on the effects said construction would have on their facilities. Petitioner's evidence was that it was the owner of a water main running beneath Bustleton Avenue and that if PennDOT's application were approved, the pipe, at its then location, would be inaccessible to maintenance. Petitioner proposed, therefore, to lay a new pipe and sought PennDOT contribution thereto.

In an opinion and order dated December 19, 1972, the PUC held, inter alia, that it would not be necessary for petitioner "to perform any work within the area of our jurisdiction, since the existing pipeline in Bustleton Avenue will be abandoned." The PUC continued: "Upon review of the situation we are not convinced that the reconstruction of the highway makes the relocation of the water line necessary." Accordingly, the PUC ordered that petitioner alone bear the costs of relocation.

Petitioner then filed a petition for rehearing before the PUC requesting the PUC to "direct full reimbursement of the relocation costs of the Petitioner." The PUC characterized said petition as one seeking "modification of our order of December 19, 1972, so as to extend the jurisdiction of this Commission to provide for the reimbursement due the petitioner for facilities lying both within and outside of the existing jurisdictional limits."

At the second hearing, petitioner again presented evidence as to the impossibility of maintaining the Bustleton Avenue pipe if the construction went ahead and to the effect that the relocation, as shown on blueprints admitted into the record at the first hearing (Philadelphia Suburban Water Company Exhibit No. 2), was necessitated solely due to PennDOT's ...


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