Nos. 100-102 E.D. Appeal Docket 1983, Appeals from the Order of the Commonwealth Court dated April 7, 1983, entered at No. 3104 C.D. 1981, reversing Paragraphs 20 and 21 of the Order of the Pennsylvania Public Utility Commission dated November 20, 1981, entered at No. A-00101907,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., concurs in the result. Larsen, J., dissents and would affirm on the opinion of the Commonwealth Court.
The question raised by the instant appeals is whether the existence of a permit to occupy a rail-highway crossing, issued by a municipality to a public utility on the condition that the utility assume financial responsibility for any relocation of its facilities necessitated by a public project,
divests the Pennsylvania Public Utility Commission ("Commission") of jurisdiction to allocate the utility's relocation costs to the municipality, where those costs have not been paid at the time of the Commission's decision.
On January 10, 1980, the City of Philadelphia ("City") filed an application with the Commission for approval of the reconstruction of a deteriorating railroad bridge which carried 67th Street over and above the grade of the tracks of the National Passenger Railroad Corporation ("AMTRAK"). The City requested reconstruction of the bridge, exemption from the Commission's minimum overhead clearance regulations and allocation of costs and expenses incident to the reconstruction. The City's application named AMTRAK, Bell Telephone Company of Pennsylvania ("Bell"), Philadelphia Gas Works ("PGW"), Southeastern Pennsylvania Transportation Authority ("SEPTA") and Philadelphia Electric Company ("PECO") as utilities concerned in or affected by the proposed construction.
A hearing before an administrative law judge was conducted in Philadelphia on May 20, 1980. At the hearing the City requested that Bell and PECO be required to relocate their facilities at their own cost and expense because they occupied a public right of way. Bell's facilities consisted of three telephone cables in a conduit on the footway of the bridge. The City established the existence of permits issued by the Board of Highway Supervisors of the City's Department of Public Works in 1918 and 1952 to open and structurally occupy a portion of the highway and/or bridge in question. The rules and regulations attached to the 1918 permit issued to Bell contain the following condition:
Change in Location of Existing Structures:
If, in the construction of water or gas mains, sewers, or any other municipal work, it shall become necessary to change the location of any existing privately owned structures occupying highways, their location shall be changed, at the sole expense of the owners, to such new
locations as shall be directed by the Board [of Highway Supervisors].
Bell's 1952 permit contains a similar regulation.
PECO's involvement in the proposed project was based on the presence of two poles, adjacent to the abutment of the bridge, which suspended PECO power lines. A PECO representative testified that, assuming the accuracy of the City's plans, the poles would not be affected by the reconstruction and thus PECO anticipated no relocation costs. PECO requested, however, that any relocation expenses it might incur be reimbursed to the extent that federal funding was available to the City. While it was established that part of PECO's facilities occupied a public right of way, no documentary evidence was introduced as to PECO's authorization to place and maintain its poles therein.
On September 25, 1980, the administrative law judge issued an initial decision approving the City's application and directing the utilities to furnish all material and do all work necessary, at their initial cost and expense, to alter and/or relocate their facilities from the crossing area so as not to interfere with construction. The administrative law judge further recommended reimbursement by the City of relocation costs as follows:
Philadelphia Water Department ...