Warminster Township Municipal Authority v. Department of Highways , 437 Pa. 19 ( 1970 )

Opinion by

Mr. Justice Roberts,

Appellant municipal authority owns and operates certain sewage and waterworks facilities which are located within the right of way of a state highway in Bucks County. Appellee, the State Department of Highways, in connection with the widening of that highway, ordered appellant to relocate its facilities and offered to pay fifty percent of the cost of such relocation. This offer was rejected as unacceptable to appellant, and appellant and appellee were unable to agree upon an acceptable figure. Several months after the offer was made and rejected, appellant requested appellee to petition the Pennsylvania Public Utilities Commission for a determination of the costs to be borne by each party. This appellee refused to do, informing appellant that the offer was withdrawn when appellant refused to accept it.

Appellant sought mandamus. Appellee filed preliminary objections in the nature of a demurrer, which were sustained, and the complaint was dismissed. This appeal followed. We reverse.

“Historically, in Pennsylvania, non-transportation public utilities have been permitted to occupy highway rights-of-way free of cost. . . . Such utilities obtain no property rights in the highway and can be ordered by a competent state . . . agency to relocate their facilities at their own expense. . . .” Delaware River Port Authority v. Pennsylvania Public Utility Commission, 393 Pa. 639, 645, 145 A. 2d 172, 175 (1958) (citations omitted). By statute, however, the Commonwealth is vested with discretionary power to make payments for relocation. The Act of June 1, 1945, P. L. 1242, art. IY, §412.1, as amended, 36 P.S. §670-412.1, provides: “[T]ke department [of highways] may make suck . . . relocation as may be required. . . . The department may also enter into agreements with any . . . municipality authority for the sharing in the costs of such . . . relocation. In any case where, in the opinion of the secretary, such costs should be shared by the department and a . . . municipality authority [,] and the department is unable to agree with such . . . municipality authority to a division of the costs, the department may proceed with the work and petition the Pennsylvania Public Utilities Commission for a determination of the costs to be borne by each party.”

Appellant argues that although the statute vests complete discretion in the Department of Highways as to whether the costs should be shared, once the secretary makes the decision to share the costs he can no longer withdraw his offer, even if it is rejected as insufficient. At that point, appellant contends, the department and the municipal authority must either agree to a division, or the department “may proceed with the work and petition” the P.U.C. for a determination.

Appellee, on the other hand, urges that once the department’s offer has been rejected, the secretary is free to again consider whether costs should be shared. If the secretary then decides to offer nothing, there is obviously no reason for appellant to petition the P.U.C.

Although neither construction of the statute makes perfect sense from a policy standpoint, we believe that appellant’s contention is the most sensible. It is true that, given appellant’s construction of the statute, the department might feel compelled to adopt a policy of rarely making any offer at all. The initial discretion does clearly rest with the department, and it might well be discouraged from offering to share costs with local authorities if it knew that such action could result in its being required to pay a greater share of the costs than it felt fair. Under appellee’s construction, however, the department could operate on a complete “take it or leave it” basis. The provision allowing a petition to the P.U.C. would be rendered superfluous since the department could withdraw its offer at any point.^* We therefore read the statute as requiring the department to submit any disagreement to the P.U.C. once it has made an offer.

The order of the Court of Common Pleas of Dauphin County is reversed and the record is remanded with instructions to grant the writ.

Mr. Chief Justice Bell dissents.

* It is impossible to say whether the department has pursued such a “take it or leave it” approach. There is evidently only one reported appellate opinion dealing with a ease which the department has submitted to the P.U.C. See Department of Highways v. Pennsylvania Public Utilities Commission, 190 Pa. Superior Ct. 1, 151 A. 2d 850 (1959).