Opinion
May 12, 1931.
June 27, 1931.
Municipalities — Public Service Company — Agreement as to abolition of grade crossing — Permit of Public Service Commission — Act of July 26, 1913, P. L. 1374.
1. An agreement between a city and a public service company, relating to the abolition of grade crossings within the municipality, is invalid unless it is approved by the public service commission. [375]
2. One who alleges that he has or will sustain damages by the abolition of such a crossing must have the amount thereof determined by the commission, with the possible right to an appeal if the facts are such as to justify it under the provisions of the Public Service Company Law of July 26, 1913, P. L. 1374, as amended. [375]
3. A petition to the court of common pleas for a jury of view to determine the amount of damages in such case is properly dismissed, where the commission had determined that no damages existed. [374-5]
Argued May 12, 1931.
Before FRAZER, C. J., WALLING, SIMPSON, KEPHART, SCHAFFER and MAXEY, JJ.
Appeal, No. 241, Jan. T., 1931, by plaintiff from order of C. P. Erie Co., May T., 1931, No. 201, refusing to appoint viewers, in case of Louis Muscato v. City of Erie. Affirmed.
Petition for rule for appointment of viewers. Before HIRST, J.
The opinion of the Supreme Court states the facts.
Rule discharged. Plaintiff appealed.
Error assigned was order, quoting record.
Charles P. Hewes, for appellant, cited: Brew v. Hastings, 206 Pa. 161.
Henry MacDonald, with him J. B. Held and T. P. Dunn, for appellee, cited: Pittsburgh, etc., R. R. v. Boro., 287 Pa. 311; Westmoreland, etc., Co. v. Pub. Ser. Co., 294 Pa. 451; City of Erie v. Pub. Ser. Com., 74 Pa. Super. 265.
Under the authority of a municipal ordinance, the City of Erie entered into a written agreement with two railroads for the abolition of certain grade crossings in the city. With a few immaterial modifications, it was approved by the Public Service Commission, after a hearing in due course, and a certificate of public convenience was issued accordingly. Appellant had a leasehold interest in a property on Peach Street, the grade of which was changed in making the improvement, and he thereupon presented his petition to the commission, under the authority of article V, section 12 of the Public Service Company Law of July 26, 1913, P. L. 1374, 1408, asking it to determine the amount of damages he had suffered by that change of grade. Upon evidence duly taken, the commission decided that he had sustained no damages. Thereafter, he filed a petition in the court of common pleas, asking it to appoint a jury of view to have the same damages determined by it. From the order of the court refusing to make the appointment, he prosecutes this appeal.
The order must be affirmed. His belated contention seems to be that the Public Service Company Law does not apply to cases where, as here, the proceeding relative to the abolition of a grade crossing, had its inception in a contract between a municipality and the utilities affected. Section 11 of Article III of the statute (P. L. 1395) expressly states the contrary. It say that "No contract or agreement between any public service company and any municipal corporation shall be valid unless approved by the commission."
This being so, it is clear that a property owner who alleges he has or will sustain damages by reason of the improvement, must have the amount ascertained in the way provided by article V, section 12 of the Act, just as appellant first sought to have them determined. It is there said (page 1410): "The compensation for damages which the owners of adjacent property taken, injured or destroyed may sustain in the construction, relocation, alteration or abolition of any such crossing _____ shall, after due notice and hearing, be ascertained and determined by the commission; and such compensation. . . . . shall be borne and paid _____ either severally or in such proper proportions as the commission may, after due notice and hearing, in due course, determine, unless the said proportions are mutually agreed upon and paid by those interested as aforesaid." It follows that the court below properly refused to appoint a jury of view to assess damages which the only tribunal authorized to pass on the subject had conclusively determined did not exist.
The order of the court below is affirmed.