Appeal from the Order of the Court of Common Pleas of Lycoming County in case of Pennsylvania Gas & Water Company v. Township of Old Lycoming, No. 76-2915.
John M. Humphrey, with him Candor, Youngman, Gibson & Gault, for appellant.
Scott A. Williams, for appellee.
James J. Kutz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Gerald Cornish, Attorney General, for intervenor.
Judges Crumlish, Jr., Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 43 Pa. Commw. Page 189]
Pennsylvania Gas and Water Company (Appellant) instituted this action in equity to challenge the reasonableness of the permit issuance and inspection fees for installation and maintenance of gas pipes
[ 43 Pa. Commw. Page 190]
located under the roads of the Township of Old Lycoming (Township). Because Appellant's complaint alleged that the statute which authorized the fees, Section 1156 of The Second Class Township Code, the Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 66156 (Code), was unconstitutional, the Pennsylvania Department of Transportation (Department) intervened as a defendant upon stipulation of the other parties. The Chancellor denied Appellant's requested relief and dismissed the complaint. Following the denial of Appellant's exceptions to the Chancellor's ruling, Appellant appealed to this Court. Appellant raises three issues for our consideration. We find them all to be without merit and, accordingly, we affirm.
Appellant first argues that in prescribing permit issuance and inspection fees for installation and maintenance of gas pipes beneath township roads, second class townships may not adopt the fee schedule for similar work utilized by the Department of Transportation. Section 1156 of the Code provides:
[ 43 Pa. Commw. Page 191]
No railroad or street railway shall hereafter be constructed upon any township road, nor shall any railroad or street railway crossings, nor any gas pipe, water pipe, electric conduits, or other piping, be laid upon or in, nor shall any telephone, telegraph, or electric light or power poles, or any coal tipples or any other obstructions be erected upon or in, any portion of a township road except under such conditions, restrictions and regulations relating to the installation and maintenance thereof, as may be prescribed in permits granted by the township for such purpose. Each application shall be submitted to the township, in duplicate, or such larger number as the township may require. The township shall prescribe a fee as Page 191} determined by the Department of Transportation payable to the township not exceeding the approximate reasonable cost of processing the application, and another fee payable to the township not exceeding the approximate reasonable cost of making the first inspection hereafter described. Each application shall be accompanied by both fees. When the township shall grant the permit applied for, the township supervisors shall inspect the work authorized by the permit upon the completion thereof, and when necessary, enforce compliance with the conditions, restrictions and regulations prescribed by the township. In addition to such inspection, the township supervisors may reinspect the work not more than two years after its completion, and if any settlement of the road surface or other defect shall appear in the work contrary to the conditions, restrictions and regulations of the township, it may enforce compliance therewith. If the applicant shall fail to rectify any such settlement or other defect, within sixty days after written notice from the township supervisors to do so, the township supervisors may do the work and impose upon the applicant the cost thereof, together with an additional twenty ...