Commonwealth, Department of Transportation v. Pennsylvania Public Utility Commission

Opinion by

Judge Craig,

The Pennsylvania Department of Transportation (PennDot) here appeals from an order of the Pennsylvania Public Utility Commission (PUC) directing PennDot to prepare and submit, within six months, detailed plans and cost estimates for the reconstruction of the Matsonford Bridge in Montgomery County.

The bridge, which serves vehicular and pedestrian traffic, spans the Schuylkill River between the Borough of Conshohocken and the Borough of West Conshohocken, ánd crosses over tracks of the former Reading Railroad on both sides of the river. PennDot concedes that the PUC had the legal power to order it to prepare the plans and estimates, and to reconstruct the bridge, by force of Section 409(c) of the former Public Utility Law,¹ but PennDot contests the time limitation imposed by the PUC order for the submission of the plans and estimates.

In September 1972, PennDot had filed a complaint with the PUC alleging that the Matsonford Bridge was in a serious state of disrepair, that PennDot had prepared a plan for its repair, and that such repair was necessary to insure the life of the bridge.

In January 1974, after investigation and hearing, the PUC issued an order approving PenriDot’s repair plan, directing that PennDot make the repairs at its own initial cost and expense, and that a further hearing be held regarding cost allocation and , future maintenance responsibilities. Included among the several other parties to the proceeding was the Borough of Conshohocken.²

In December 1974, PennDot petitioned the PUC to modify its order. In that petition PennDot asserted that repair of the bridge was not economically feasible and that the bridge had to be reconstructed, as a new bridge to be built at the same location. After further hearing the PUC issued a new order, on October 21, 1975, approving the petition for modification. The modified order directed PennDot to submit to the PUC and the other parties, within twelve months, detailed plans and cost estimates for the reconstruction of the Matsonford Bridge.

By November 12, 1976, PennDot had not submitted plans and estimates as directed by the modified order. On that date the Borough of Conshohocken petitioned the PUC to enforce the mandate. According to the Borough, the bridge was in such a state of disrepair as to endanger the public. In the wake of the Borough’s action, PennDot filed another petition of its own, on December 1, 1976, this time seeking a time extension to comply with the order of October 21, 1975. In that petition PennDot represented that its financial situation prevented it from completing the plans and estimates for reconstruction, and PennDot requested that the deadline set in the order of October 21, 1975, be extended to a time twelve months from legislative approval of funds for the entire reconstruction project.

In October 1977, an Administrative Law Judge entered an Initial Decision rejecting PennDot’s contention that compliance with the PUC order had to await legislative approval, directing PennDot to repair the bridge surface within sixty days, and to complete and submit at its own cost, within six months of the Decision, the detailed plans and estimates. In January 1978, the PUC entered an order adopting the decision of the Administrative Law Judge; from that order PennDot has appealed to this Court.

Although PennDot itself thus was the originator of the petition to reconstruct the bridge, nevertheless PennDot now asserts that there is an independent legal impediment to full compliance as to plans and estimates within the six months specified by the order here in issue.

PennDot argues that reconstruction of the bridge is a “capital project” as defined by Section 2(1) of the Capital Facilities Debt Enabling Act (Debt Enabling Act)³ and that, therefore, legislative approval is required to expend funds even for the plans and cost estimates. From that contention, PennDot further argues that the need for legislative approval prevents compliance with the PUC order within the six months mandated.

On the other hand, the PUC claims that PUC projects, such as this reconstruction of the Matsonford Bridge, are not “capital projects” within the compass of the Debt Enabling Act and thus no legislative approval is required.

In order to narrow our inquiry to the key issue, we conclude, at the outset, that PennDot is correct in contending that:

1. A ‘capital project’, if it is to be financed by debt incurred without voter approval, must be specifically itemized in a capital budget. Pa. Const, art. VIII, §7(a)(4)

2. The reconstruction cost of the Matsonford Bridge, if it were to be debt-financed under the above constitutional provision, is a ‘capital project’ in that it involves the construction of a ‘structure, facility or physical public betterment or improvement’ having ‘an estimated useful use in excess of five years and an estimated financial cost in excess of one hundred thousand dollars ($100,000)’. Section 2(1) of the Debt Enabling Act, 72 P.S. §3920.2(1)

3. Even if the bridge reconstruction were to be financed, not from debt without voter approval, but from other debt or from operating funds, the governor has a duty to identify such a project in the capital budget for the fiscal years in which such capital project expenditures are proposed. Pa. Const, art. VIII, §12; Section 613 of the Administrative Code⁴

However, the contested order here does not mandate the Matsonford Bridge reconstruction itself; it mandates only the completion of plans and estimates in preparation for that project, at a planning cost of approximately $75,000, such plans being, according to PennDot, already 50% complete.

Therefore the pivotal issue is whether the expense of the plans and estimates ordered by the PUC must be treated as a capital project expenditure under the statutory and constitutional requirements on which PennDot relies for delay.

PennDot has not presented any authority to support the essential premise — that the plan-making cost must.be treated as a capital project expenditure which cannot be made without specific legislative authorization-other than a reference to Section 2(6) of the Debt Enabling Act,⁵ which includes preliminary planning costs within the definition of the “financial cost” of a “capital project”. However, that act relates only to the authorization of debt financing and therefore does not amount to a requirement that planning costs be treated as inseparable from the construction costs, at least where the planning costs might be financed by sources other than debt.

We cannot read the effect of that definition as doing more than authorizing planning expenses to be treated as capital costs for the purpose of debt financing; the act contains no words mandating that such expense shall be always so treated.

Our interpretation of Section 2(6) is illustratively confirmed by the fact that its definition of “financial cost” also includes personnel salaries incurred in planning a capital project. Although the act thus permits such operating costs to be debt-financed as a “financial cost” of a “capital project” when so related, to read the section as mandating that such salary expenses shall always be classed as capital project matters, so as to require advance legislative approval before any PennDot engineer could be devoted to construction plans for a possible project, would of course be ludicrous.

In addition, the Governor’s Administrative Code duty, noted above, to include capital project expenditures in his capital budget, even if financed from operating funds, does not speak to the question of whether the planning costs must necessarily be treated as part of the “capital project” for that budgeting requirement.

Therefore, the preparation of plans and estimates does not involve expenditures which must await full capital project budgeting and legislative authorization of the specific project; the design funding here need only be made out of a lawful budgetary source like any other ongoing expense of PennDot. To treat design study costs otherwise would surely hamstring PennDot seriously hereafter, requiring it to have itemized legislativé approval before proceeding even to engage in any planning for a crucial future project, whether or not ordered by the PUC. To require specific legislative approval before preparing any design studies, themselves often necessary to provide a basis for legislative consideration of the capital project, would be putting the cart before the horse, and we do not perceive that the wording of the law requires that to be done.

Accordingly, we affirm the order of the PUC.

Order

And Now, this 7th day of April, 1981, the order of the Pennsylvania Public Utility Commission at its Complaint Docket No. 19707, adopted November 22, 1977 and entered January 9, 1978, is hereby affirmed.

This decision was reached before the expiration of the term of office of Judge Wilkinson, Jr.

1 Act of May 28, 1937, P.L. 1053, as amended, 66 P.S. §1179(c), now Section 2702(c) of the Public Utility Code, 66 Pa. C. S. §2702(c).

2 Other parties respondent were the Borough of West Conshohocken, the County of Montgomery, the Trustees of the Reading Company, the Bell Telephone Company, and the Philadelphia Suburban Water Company.

3 Act of July 20, 1968, P.L. 550, as amended, 72 P.S. §3920.2(1).

4 Section 613 of the Act of April 9, 1929, P.L. 177, as amended, added by Section of the Act of September 27, 1978, P.L. 775, 71 P.S. §233.

5 72 P.S. §3920.2(6).