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12/10/97 BELL ATLANTIC - PENNSYLVANIA v.

December 10, 1997

BELL ATLANTIC - PENNSYLVANIA, INC., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, TURNPIKE COMMISSION, RESPONDENT



Before: Honorable Jim Flaherty, Judge, Honorable Bonnie Brigance Leadbetter, Judge, Honorable Silvestri Silvestri, Senior Judge. Opinion BY Judge Flaherty. The decision in this case was reached before the death of Senior Judge Silvestri. Concurring Opinion BY Judge Leadbetter.

The opinion of the court was delivered by: Flaherty

ORIGINAL JURISDICTION

OPINION BY

JUDGE FLAHERTY

FILED: December 10, 1997

Before this court is a motion for summary judgment filed on behalf of Bell Atlantic-Pennsylvania, Inc. (Bell) and a motion for summary relief filed by the Turnpike Commission (Commission). The parties have stipulated that Bell provides telecommunication service to customers in Pennsylvania and is a public utility. The Commission is an independent agency of the Commonwealth which is responsible for the construction and operation of certain limited access toll roads within Pennsylvania. The Commission operates under the authority of the Turnpike Organization, Extension and Toll Road Conversion Act (Turnpike Act). *fn1 Bell's telecommunication facilities include copper and fiberoptic wires and cables, aerially suspended from poles or placed underground or on bridge structures, and located in public and private rights-of-way.

By act of legislature, the Commission was charged with constructing the Beaver Valley Expressway. Before construction commenced, the Commission required Bell to relocate, restore, repair and/or protect its facilities located within the path of the planned construction of the Beaver Valley Expressway. But for the Commission's construction project, Bell had no reason or intent to relocate its facilities. In relocating its facilities, Bell incurred costs of $386,253.73. The Commission reimbursed Bell for its relocation costs in private rights-of-way in the amount of $89,685.30. However, the Commission has not reimbursed to Bell the balance of $296,568.43 for its relocation costs in public rights-of-way.

By act of legislature, the Commission was also charged with constructing the Greensburg Bypass. Again, before construction, the Commission required Bell to relocate its facilities located within the path of the planned construction. The relocation costs incurred by Bell amount to $1,388,094.00. The Commission reimbursed Bell for its relocation costs in private rights-of-way for the Greensburg Bypass in the amount of $123,316.91. The Commission has not reimbursed Bell the remaining $1,264,777.09 for its relocation costs in public rights-of-way at the Greensburg Bypass.

Bell's total relocation costs amount to $1,774,347.73, of which $213,002.21 has been reimbursed by the Commission. The remaining $1,561,345.52 which relates to relocation from public rights-of-way, has not been reimbursed by the Commission.

On June 23, 1995, Bell filed a petition for review in the nature of a complaint in mandamus against the Commission seeking reimbursement for Bell's costs of relocating its utility facilities from public rights-of-way located in the route of the Beaver Valley Expressway and the Greensburg Bypass. The parties filed stipulations of fact on May 30, 1997. On that same date, Bell filed a motion for summary judgment, and the Commission filed a motion for summary relief, both of which rely exclusively upon the facts set forth in the stipulations.

The issue in this case is whether the Commission is statutorily required to reimburse Bell for relocation of its telecommunication facilities, where those facilities where caused to be relocated from public rights-of-way by the Commission's construction of new roadways.

A motion for summary judgment may be granted only when the pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. In Re Superior-Pacific Fund, Inc., 693 A.2d 248, 251 n.2 (Pa. Commw. 1997). As to summary relief, Pa. R.A.P. 1532(b) provides that:

(b) Summary Relief. At any time after the filing of a petition for review in an appellate or original matter the court may on application enter judgment if the right of the applicant thereto is clear.

Thus, this court must determine whether it is clear from the undisputed facts that either party has a clear right to the relief requested. Gelnett v. Department of ...


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