concurring.
While I do not disagree with the majority opinion, I write separately to further explain the basis upon which my decision rests. As noted by the majority, Bell Atlantic argues that the common law rule described in Delaware River Port Authority v. Pennsylvania Public Utility Commission, 393 Pa. 639, 145 A.2d 172 (1958), has been abrogated by the Turnpike Organization, Extension and Toll Road Conversion Act, Act of September 30, 1985, P.L. 240, as amended, 36 P.S. § 651.1 et seq. That statute provides, in pertinent part:
(c) Restoration of property. — All public or private property damaged or destroyed in carrying out the powers granted by this act shall be restored or repaired and placed in their original condition as nearly as practicable or adequate compensation made therefor out of funds provided under the authority of this act.
36 P.S. § 651.10(c)1
Bell argues, in essence, that although its property has neither been “damaged” nor “destroyed”, it would have been had Bell not relocated it prior to the highway construction. Thus, the relocation of its property was a mitigation of the damages the Commission would have had to pay if Bell had left its lines in place. The flaw in this argument is that if the common law rule applies, Bell had no right to leave the lines in place, and therefore could not collect damages for the direct result of its refusal to comply with its legal obligation to move the lines upon the Commission’s request.
Thus, the question becomes whether the legislature intended, by this “damaged or destroyed” language, to abrogate the common law that utility companies are not entitled to compensation for relocation costs. With no .guidepost other than the words of the Turnpike Act, this issue would be far from clear. Fortunately, however, we are not left to decide this question in such a vacuum.
In response to the common law rule and to the decision in Delaware River Port Authority, in 1963 the legislature amended Section 411(a) the Public Utility Law of 1937 to provide, with respect to highway rail crossings, that:
[T]he cost of...relocation...of facilities at or adjacent to such crossing which are used in any kind of public utility service, shall be borne and paid, as provided in this section, 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....
City of Philadelphia v. Philadelphia Electric Co., 504 Pa. 312, 320, 473 A.2d 997, 1001 (1984) (setting forth text of 1963 amendment).2 Thus well before enactment of the Turnpike Act provision at issue here, the legislature had specifically abrogated the common law rule in the limited area of highway rail crossings in clear and unambiguous terms. See City of Philadelphia. In light of this historical background, I must conclude that the omission of similar unambiguous language in the Turnpike Act was purposeful, and that no intent to abrogate the common law rule may be inferred here. Accordingly, I believe that the majority correctly concludes that the common law is still viable with respect to utilities occupying right of ways along the Turnpike.
. This language is also found as the last sentence of 36 P.S. § 652d.
. The Public Utility Law of 1937 was repealed in 1978 and simultaneously reenacted at 66 Pa.C.S. § 101 et seq. Former § 411(a) of the 1937 Act now appears at 66 Pa.C.S. § 2704(a).