Appeal from the Order of the Pennsylvania Public Utility Commission in case of Application of the City of Philadelphia for approval of (1) the reconstruction of Railroad Bridge No. 4.84 carrying 67th Street, south of Paschall Avenue, over and above the grade of the tracks of the National Passenger Railroad Corporation, in the City of Philadelphia, (2) exemption from the minimum overhead clearances as required by Part III of the Commission's railroad regulations and (3) the allocation of costs and expenses incident thereto, No. A.00101907.
Kenneth L. Fox, Assistant City Solicitor, with him Herbert Smolen, Deputy City Solicitor, and Alan J. Davis, City Solicitor, for petitioner.
John J. Gallagher, Assistant Counsel, with him John B. Wilson, Deputy Chief Counsel, and Charles F. Hoffman, Chief Counsel, for respondent.
Rudolph A. Chillemi, Assistant General Counsel, with him Eugene J. Bradley, Associate General Counsel, and Edward G. Bauer, Jr., Vice President and General Counsel, for intervenor, Philadelphia Electric Company.
William M. Posner, with him Donald F. Clarke, for intervenor, The Bell Telephone Company of Pennsylvania.
Judges Rogers, Blatt and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.
[ 73 Pa. Commw. Page 326]
The City of Philadelphia has appealed those portions of an order of the Pennsylvania Public Utility Commission which direct the city to pay to intervenors, The Bell Telephone Company of Pennsylvania and Philadelphia Electric Company, sums equal to 100 per cent of the actual costs to them of relocating their
[ 73 Pa. Commw. Page 327]
facilities from the area of the crossing, above grade, where 67th Street crosses over and above the tracks of the National Railroad Passenger Corporation (AMTRAK).
The intervenors' facilities were located in 67th Street (including at the crossing just mentioned) under permits granted by the city. A condition of the permits was that if any municipal work made it necessary to change the location of the intervenors' facilities, they would be relocated at the intervenors' expense. The intervenors agree that the condition requires them to bear the expense of relocating their facilities in the usual case; they contend, however, that the usual consequence of their agreement does not apply to the costs of the relocation of their facilities at a rail-highway crossing because the allocation of such costs is the exclusive province, in the first instance, of the P.U.C., pursuant to 66 Pa. C.S. § 2704(a), reading:
[The] cost of construction, relocation, alteration, protection, or abolition of such crossing, and of facilities at or adjacent to such crossing which are used in any kind of public utility service, shall be borne and paid, . . . by the public utilities or municipal corporations concerned, or by the Commonwealth in such proper proportions as the commission may after due notice and hearing, determine, unless such proportions are mutually agreed upon and paid by the interested parties.
The city contends that the case of Philadelphia v. Pennsylvania Public Utility Commission, 449 Pa. 402, 296 A.2d 804 (1972) is indistinguishable on the facts, directly on point on the law and therefore controlling. We agree and reverse the Commission's order insofar as it imposes any of the costs of relocating the intervenors' facilities upon the ...