21 Pa. Commw. 106 | Pa. Commw. Ct. | 1975
Opinion by
On July 30, 1969, the Southeastern Pennsylvania Transportation Authority (SEPTA) entered into an agreement with the Philadelphia Suburban Transportation Company (PSTC) whereby SEPTA contracted to purchase the assets of PSTC including the Buck Lane Bridge under which run the rail lines of PSTC. On December 22, 1969, before the transaction was closed on January 29, 1970, the Township of Haverford had filed a complaint with the Public Utility Commission (PUC) alleging that the bridge was hazardous and unsafe. After hearings, the PUC ordered the bridge to be reconstructed, and on May 21, 1973 it assessed SEPTA with thirty percent of the cost of that reconstruction. PSTC was not assessed costs. SEPTA had argued before the PUC that it could not be held liable for any reconstruction costs under the terms of its agreement of sale with PSTC. But the terms of that agreement were in dispute between those parties and the PUC refused to interpret the contract. Instead, the PUC assessed the thirty percent cost against SEPTA in the first instance without prejudice to the rights of SEPTA to settle its contractual dispute with PSTC in another proceeding in another forum. SEPTA later petitioned the PUC for re-argument of the cost allocation issue raised by the May 21, 1973 order, but that petition was denied by an order of the PUC dated September 24, 1974. From that order SEPTA now appeals to this Court.
As is provided in Section 411 (a) of the Public Utility Law.
“ [T] he cost of construction . . . shall be borne and paid, as hereinafter provided, 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,*109 unless such proportions are mutually agreed upon and paid by the interested parties.” (Emphasis added.)
It has been held, therefore, that where the parties have 1) allocated the cost of such reconstruction between themselves by contract, and 2)- have paid for the reconstruction in accordance with the terms of the contract, the PUC does not have the power to abrogate that contract by ordering one party to reimburse the other party in proportionate amounts contrary to those as provided in the contract. City of Philadelphia v. Pennsylvania Public Utility Commission, 449 Pa. 402, 296 A.2d 804 (1972). Such action would be outside of the PUC’s statutory authority. SEPTA argues here that the PUC has so ordered the parties to pay costs contrary to their own agreement. Its position, however, is significantly distinguishable from the position of the parties in City of Philadelphia, supra, and its arguments must, therefore, fall.
Without quoting the terms of the contract between SEPTA and PSTC, they would indeed appear to set forth the respective liabilities of the parties as to any assessed costs of reconstruction. As between the parties, however, no payments have been made pursuant to the agreement for there still exists a dispute as to the proper construction to be accorded the contract as it concerns this liability. By its order of May 21, 1973, the PUC did not abrogate the rights of SEPTA under the agreement but preserved the opportunity to have the respective rights of the parties determined privately in a separate forum. The PUC’s authority 'to act in this manner is expressly sanctional in Pennsylvania Railroad Company v. Public Utility Commission, 136 Pa. Superior Ct. 1, 7 A.2d 86 (1939). There the court said that the PUC had no jurisdiction to abrogate contracts among the parties “but it does not follow that the utilities and municipalities are not and cannot be made responsible in the first instance for the performance of a public duty — here to safely maintain a
In accordance with Pennsylvania Railroad Company v. Public Utility Commission, supra, SEPTA may still have its rights in relation to PSTC adjudicated and the ultimate responsibility to pay the cost of reconstruction determined as between the parties to the agreement in a private action.
SEPTA also argues that the PUC acted arbitrarily and capriciously in allocating costs to SEPTA. In apportioning costs, the PUC is not limited to any fixed rule, but all factors should be taken into consideration. The only requirement is that the order be just and reasonable. Pennsylvania Public Utility Commission v. Department of Transportation, 2 Pa. Commonwealth Ct. 144, 276 A.2d 573 (1971); see also Pittsburgh Railways Company v. Pennsylvania Public Utility Commission, 198 Pa. Superior Ct. 415, 182 A.2d 80 (1962). The PUC in its order indicated that the cost allocation was based on “past
We, therefore, issue the following
Order
And now, this 15th day of August, 1975, the order of the Pennsylvania Public Utility Commission dated September 24, 1974, is hereby affirmed and the appeal by the Southeastern Pennsylvania Transportation Authority is dismissed.
. Act of May 28, 1937, P.L. 1053, as amended.