*3 NIX, C.J., LARSEN, Before FLAHERTY, and McDER- MOTT, HUTCHINSON, ZAPPALA PAPADAKOS, and JJ.
OPINION NIX, Chief Justice.
The question by raised instant appeals whether the permit existence of a to a occupy rail-highway crossing, by municipality issued a to a utility on the condition that the assume utility financial for responsibility any relo- cation its of facilities necessitated by public project, a (“Com- Commission Pennsylvania divests the mission”) utility’s to allocate the jurisdiction not been where those costs have municipality, costs of the decision. at the time Commission’s paid
I. (“City”) Philadelphia January City On of the approval application filed an with car- bridge railroad deteriorating reconstruction of a the tracks of grade ried 67th Street over above (“AMTRAK”). Corporation Passenger the National Railroad bridge, exemption of the requested The reconstruction City regula- clearance minimum overhead from the Commission’s incident to the expenses of costs and tions and allocation AMTRAK, named City’s application reconstruction. The (“Bell”), Philadel- Telephone Company Bell (“PGW”), Gas Works Southeastern phia (“SEPTA”) Elec- Transportation Authority (“PECO”) in or affected as utilities concerned Company tric proposed construction. con- hearing judge A before an administrative law was in Philadelphia hearing ducted on 1980. At the May relocate requested required that Bell and PECO be City expense they their facilities at their own cost and because occupied public right way. Bell’s facilities consisted on the of the telephone footway three cables a conduit bridge. permits established the existence of is- sued the Board of of the Highway Supervisors City’s Department of open Public Works 1918 and 1952 to *4 structurally occupy portion bridge a of the and/or highway question. The rules and attached to the 1918 regulations permit issued to Bell following contain the condition:
Change in Location Existing Structures: If, mains, sewers, gas the construction of or water work, any municipal other it necessary shall become change the location any existing privately owned struc- tures their shall occupying highways, location be owners, changed, at the sole of the to such expense new locations as shall be by Highway directed the Board [of Supervisors]. permit regulation.
Bell’s 1952 contains a similar in the proposed project PECO’s involvement was based on the to the presence poles, adjacent of two abutment of the bridge, A suspended rep- PECO lines. PECO that, testified the assuming accuracy resentative the affected City’s plans, poles would not be recon- anticipated struction and thus PECO no relocation costs. however, requested, expenses PECO it might incur to the extent that federal fund- be reimbursed ing was available to the it established that City. While was part occupied right way, of PECO’s facilities no introduced as to PECO’s authori- documentary evidence was place zation to its therein. poles and maintain September judge On the administrative law approving City’s application issued an initial decision directing the utilities to furnish all material and do all necessary, expense, work at their initial cost and to alter area crossing and/or relocate their facilities from so as not to The interfere with construction. administrative law judge City further recommended reimbursement relocation costs as follows: 100%
AMTRAK 75% PECO 75% Bell 100% PGW 100%1 Department Philadelphia Water excepted portion Bell and to the of the City, PECO of the relocation costs of Bell assigning percent decision urging to the The utilities were City. and PECO respon- disclaimed all reimbursement while percent By opinion for of those costs. order sibility payment Bell directed that November of relocation and expense the initial cost and PECO bear City’s plans revealed that 1. The reconstruction Department facilities Water would be affected.
317 percent 100 that, of the upon completion project, of the by the City. actual of Bell and PECO be reimbursed costs Court from appealed to the Commonwealth City The determination, intervened. and Bell and PECO On that 17, the Commonwealth Court reversed Com April 1983 City as to Bell and PECO. mission’s allocation order of Commission, Pennsylvania Utility v. Public (1983). The 325, A.2d 1338 Common 73 Pa.Commw. 457 responsible for held that the utilities were wealth Court Commission, Bell their relocation costs. own appeal, this for allowance petitioned PECO2 Court order. For Court’s agreed we to review Commonwealth reverse the Commonwealth the reasons which follow we order. Court and reinstate Commission’s
II. that the au by recognizing our begin inquiry We from arise either the ex must thority of the Commission pertinent by strong statutes or press words of the Pennsylvania, v. Bell Feingold therefrom. necessary implication (1977); Allegheny Coun 7 Pa. A.2d 791 383 47 Utility Public Com Pennsylvania Port v. ty Authority mission, Delaware River (1967); A.2d 602 427 Pa. 237 Utility Commis Port v. Public Authority Pennsylvania sion, v. Day Public (1958); 172 Pa. A.2d 393 145 Commission, 312 Service Citi (1933); 167 A. 565 Pa. v. Public Service Commis Railway zens Co. Passenger v. sion, Behrend Bell (1921); 39, 114 642 271 Pa. A. Co., Telephone (1978); A.2d 233 Pa.Super. 257 390 Department Highways Du- (1962); 182 A.2d 267 Pa.Super. out, none In its PECO that it turned "[a]s [its]
2.
Brief
states
to be relocated because
interference with the
facilities had
"[d]espite
City
bridge”
the fact that the
of the
but
reconstruction
costs,
obligation to PECO for its relocation
would have no financial
appealing the PUC’s Decision.” Brief for
it in
PECO
included
admission,
PECO, by its
is not involved in the controver-
at 6. As
own
Court,
sy
appeal
its
must be dismissed as moot. See
before this
Mining
Department
Pennsylvania Coal
Association v.
Resources,
(1982).
A.2d 637
Environmental
quesne Light Co. v.
Commis-
*6
sion,
v.
Pittsburgh
(1949);
164
A.2d 466
Pa.Super. 166, 63
Commission,
Pennsylvania
Public
Utility
Pa.Super.
157
Erie
Pennsylvania
v.
595,
(1945);
Before
the statutory
provisions
specifically
case,
involved
this
a historical
review of this area is
informative. Under
the earlier case law of the Common-
wealth, non-transportation
permitted
utilities were
to occu-
cost,
py highway rights-of-way free of
subject
subordi-
police
nate to the state’s
to control and
regulate
Delaware River
highways
public.
the benefit of the
Authority
Port
v. Pennsylvania
Utility
Commis-
sion,
Case,
Delaware
supra;
River Joint Commission
342
Philadelphia Electric Co. v.
119,
(1941);
Pa.
Scranton
(1933);
311 Pa.
Following our decision Delaware River Port Authori- ty, supra, legislature 411(a) 1963 amended section read as follows: Compensation Damages
Section 411. Occasioned Relocation, Protection, by Construction, Alteration, or Crossings. (a) compensation Abolition of for dam- — ages taken, the owners of in- adjacent property jured may construction, or sustain in destroyed relo- cation, alteration, protection, or of any crossing abolition shall, under the provisions act, of this after due notice and hearing, be ascertained and determined by the com- compensation, mission. Such as well as the [expense] cost construction, relocation, alteration, protec- [such] tion, or such and of facilities of [any] crossing, abolition at or such adjacent crossing which are used in service, kind public utility be paid, shall borne and as provided, by hereinafter utilities municipal or corporations concerned, in such *8 proper proportions as the commission may, after due hearing, determine, notice and unless such proportions are upon mutually agreed paid by and the interested parties____ or by words added deleted the in amendment shown
[The
brackets,
italics or
respectively.]
The 1963 amendment was
in
obviously
to
response
our decision in Delaware River Port Authority, supra, and
provided
the added language
grant
the clear
of
to
authority
the Commission
allocate
to
relocation costs
by
incurred
” in
“any
public utility
kind
service
rail-highway cross
of
ings. See City
Pittsburgh
Pennsylvania
Public Util-
of
(1979). It
80,
Section relocation, expense for the by facility owners necessitated compensation by amount of such be borne by and the utilities determined the Commis- proportions paid agreed sion unless the amounts to are mutually be paid by by and The affected upon parties. parties agree rail-highway encouraged are thus construction relocation among respecting themselves the allocation of to allocate expenses. unauthorized presence payment by costs of an parties. Philadelphia v. Commis- 402, 804, sion, 408, (1972)(emphasis 296 A.2d in original). the Public part ongoing program,
As of an codification Assembly repealed by Law of 1937 was General were in 19786 and the Consolidated Statutes7 66, Title Utilities.8 simultaneously amended to include result, identical to provision virtually As a a statutory § 411(a) 2704(a).9 The now at 66 appears section Pa.C.S. 116(b). July 6. No. Act of P.L. No.
7. November P.L. 230. Act of 116(a), seq. July Pa.C.S. 101 et § 8. P.L. No. Act 2704(a) provides: 9. Section construction, Compensation damages occasioned crossings or abolition (a) damages the own- compensation for General rule. —The taken, injured, destroyed may adjacent property sustain in ers alteration, construction, relocation, protection, or abolition shall, part, due notice any crossing provisions of this after under the hearing, determined the commission. be ascertained construction, relocation, compensation, cost of as the Such as well alteration, crossing, facilities protection, of such and of or abolition *9 322
1978 did not effect in the Commis- change codification a costs. sion’s to allocate
III. 2704(a) the vested with Under section Commission was the authority to allocate Bell’s relocation cost between City and Bell as it deemed unless the allocation appropriate ” agreed upon and the “mutually by of those costs Bell was City “paid” by meaning and Bell within the of the section. However, that and Commonwealth Court contend City Utili- Philadelphia v. our decision in I), (Philadelphia ty (1972) that the Com- controlling requires finding reloca- mission not authorized to allocate Bell’s costs of was that disagree tion in this matter. are forced to with We conclusion. I Philadelphia in holding by majority
The narrow setting private in factual there cost was that that was permits allocation embodied the utilities’ which had been agreed upon paid within the contem- mutually both 411(a) attempt to the plation prior of section Commission’s cost City percent to order the to reimburse 75 of the utilities holding relocation.10 To the extent of the actual facilities Philadelphia I it simply language tracks the of section 411(a) 2704(a) and its successor section and leaves for us the as to under the there determination whether instant facts mutual was an executed between Bell and prior to the Commission’s assertion of jurisdiction. crossing adjacent public at or to such which are used in kind of service, section, utility paid, provided shall be borne and as in this concerned, municipal corporations utilities or proper proportions in such as the commission determine, hearing, may, propor- after due notice and unless such mutually agreed upon paid by parties. tions are the interested 10. In a dissenting opinion by Pomeroy, joined by Mr. Justice Mr. Roberts, Justice Commis- sion, (1972), expressed Pa. A.2d a view was payment volitionally pursuant agree- had not been made to the case, question voluntary compliance In this ment. is not before payment the Court no had been because tendered at the time of the Commission's decision.
323 the beyond went language opinion that Unfortunately aside to set power the Commission’s holding and discussed to the alloca- as parties into between entered contracts was opinion of the portion That relocation costs.11 tion of 411(a) and sections language since gratuitous clearly under vested 2704(a) apparent it makes there were to instances where limited provisions these was parties as between agreements no executed mutual costs. of relocation the allocation rail- over jurisdiction
While
is,
attaches,
unlimited,
it
it
when
crossings is not
highway
Railroad
Delaware,
Lackawanna & Western
exclusive,
Bartron
Shuman, 382 Pa.
(1955);
452,
Co. v.
161
115 A.2d
County,
(1941);
Northampton
163,
Although one may argue the wisdom of the common
rule,
law
it must be
that in enacting
remembered
the Public
Code and in creating the
the legislature
sought
to
a
establish
statewide standardization of all facets
of
operation
of public
governance
utilities under the
the Commission. Duquesne
Co. v. Monroeville
Light
Bor
ough,
Chester County v.
(1972);
449 Pa.
In the instant the Commission determined that jurisdiction it had to allocate Bell’s costs, relocation notwith standing agreements the permit placed into evidence City, because no payment any relocation costs had been 2704(a) made.12 of section explicit requirement Given expenses allocated relocation must have been privately in to paid jurisdiction order to divest the Commission of allocation, make its was clearly own that determination 2704(a), jurisdiction correct. Since it retained under section it was Commission to make a discretion- appropriate ary allocation of Bell’s relocation costs. wisdom, in legislature,
Because its has made the agreement existence of an executed the test for the Com mission’s mere jurisdiction, without is payment significance of no proceedings allocation before the Com mission. Parties encouraged are thus out their carry agreements time, promptly. At the same the Commissionis spared the onerous and inappropriate determining task private agreements, validity permitted and is uncompensated allocate all expenses expedi a fair and tious manner.
Accordingly, the Order of the Commonwealth Court re- versing Order, Paragraph 20 of the Commission’s directed the to reimburse Bell for 100 percent its costs, reversed, is portion and that of the Com- mission’s appeal Order reinstated. The from PECO *12 the Order of the reversing Paragraph Commonwealth Court 21 of the Commission’s Order dismissed as moot.
HUTCHINSON, J., concurs in the result.
LARSEN, J., dissents and opinion would affirm on the the Commonwealth Court.
HUTCHINSON, Justice, concurring.
I join the majority opinion but write
to
separately
empha-
size the
Commission’s full power
agree-
over
ments and contracts between utilities and municipalities
where rail-highway crossings are involved. The Commis-
sion has
general power
to revise and reform the terms
finding
12.
In view
payment,
of our
that there was no
we need not
arguments
regarding
concern ourselves with the
advanced
whether or
“mutually agreed upon."
not the matter had been
public
utility contracts affecting
public
interest under
§
Section 508 of the
Code,
Public Utility
66 Pa.C.S.
2704.1
See the dissenting opinion by Justice Pomeroy, joined by
(later
then
Justice)
Justice
Chief
Roberts,
in v. Pennsylvania Public Utility Commission,
449 Pa.
(1972).
In Delaware River Port Authority v. Pennsylvania Public Utility Commission,
(1958) our court held that the language in former Section 411 applied only transportation to utilities and not to non- transportation utilities affected relocation of a rail- highway In crossing. enacting legislature Section had attempted, in rail-highway cases, crossing to reverse general common rule law that relocation costs are the utility’s sole responsibility, by giving the authority P.U.C. to allocate rail-highway crossing relocation costs “unless such proportions are mutually agreed and upon paid by the interested parties”. legislature Thereafter language added to Section 411 expressly giving P.U.C. power allocate the cost of relocating any public kind of currently provides: 1. 66 Pa.C.S. § 508 reform, authority vary, The commission shall have and or revise, fair, reasonable, basis, upon equitable any obligations, and terms, any or conditions of contract heretofore or hereafter entered any public utility any person, into between corporation, or municipal corporation, public right, which embrace or concern a benefit, franchise, thereof, privilege, duty, grant or or the or are public otherwise affected or concerned with the interest and the general well-being of this Commonwealth. Whenever the commis- determine, sion hearing, upon shall after reasonable notice and its terms, upon complaint, obligations, own motion or such or unreasonable, unjust, inequitable, conditions are or otherwise con- trary general well-being adverse to the interest and the this prescribe, the commission shall determine and order, reasonable, by findings just, equitable obliga- *13 tions, terms, contract, and conditions of such contract. Such as commission, by modified the order of the shall become effective 30 days upon parties after service of such order to such contract. or utility facility adjacent rail-highway crossing at to a among public utilities, or the municipal corporations in proportions may Commonwealth such as the Commission determine: compensation for damages adja- which the owners of taken,
cent property injured, or sustain in destroyed may construction, relocation, alteration, or protection, abo- lition of any crossing provisions part, under the of this shall, after due notice hearing, be ascertained determined as by compensation, commission. Such well as the cost construction, relocation, alteration, such and of facilities protection, or crossing, abolition adjacent at or to such are crossing which used in service, public utility kind as paid, shall be borne and section, provided this utilities or munici- by concerned, pal corporations
such proper proportions may, as the commission after due determine, hearing, notice and such proportions unless mutually agreed upon paid are the interested parties. §
Act of P.L. July (Emphasis P.S. amendment). indicates 1963
Nevertheless, our Court in supra, held that the P.U.C. had no to allocate costs when the had been “executed” in the mere of being signed. sense It then construed such payment. “execution” as The subliminal justification for this exegesis somewhat strained was the potential problems constitutional in interfering with the utilities’ 20th early century permit applications, street majority preexisting construed to be “contracts”. applications These required by existing city were then ordi- nances.
I majority opinion believe the overrules that case by I implication. implication express. would make the Furthermore, I it the majority opin- believe follows from ion that the Commission is the sole for finally forum deter- mining appropriate cost allocation subject only appel- *14 where, where, crossings only rail-highway
late review but authority super- are involved. therefore, is, respect limited in existing sede contracts an on that only the allocation of costs when not payment. fulfilled actual Such is subject has been the case here. CO., Appellant, INSURANCE
UTICA MUTUAL CONTRISCIANE, Laura Executrix of the Estate of Kenneth Contrisciane, Deceased, Casualty and The Aetna & Co.,
Surety Appellees. Supreme Pennsylvania. Court
Argued 1984. Jan.
Decided March 1984.