concurring.
I join the majority opinion but write separately to emphasize the Public Utility Commission’s full power over agreements and contracts between utilities and municipalities where rail-highway crossings are involved. The Commission has the general power to revise and reform the terms *326of public utility contracts affecting the public interest under Section 508 of the Public Utility Code, 66 Pa.C.S. § 2704.1 See the dissenting opinion by Justice Pomeroy, joined by then Justice (later Chief Justice) Roberts, in Philadelphia v. Pennsylvania Public Utility Commission, 449 Pa. 402, 296 A.2d 804 (1972). Moreover, Section 2704, 66 Pa.C.S. § 2704, restating former Section 411 of the 1937 Public Utility Code, Act of May 28, 1937, P.L. 1053, 66 P.S. § 1181, deals specifically with that power in cases of rail-highway crossings. The history of Section 2704 and its predecessor is instructive.
In Delaware River Port Authority v. Pennsylvania Public Utility Commission, 393 Pa. 639, 145 A.2d 172 (1958) our court held that the language in former Section 411 applied only to transportation utilities and not to non-transportation utilities affected by the relocation of a rail-highway crossing. In enacting Section 411, the legislature had attempted, in rail-highway crossing cases, to reverse the general common law rule that relocation costs are the utility’s sole responsibility, by giving the P.U.C. authority to allocate rail-highway crossing relocation costs “unless such proportions are mutually agreed upon and paid by the interested parties”. Thereafter in 1963, the legislature added language to Section 411 expressly giving the P.U.C. power to allocate the cost of relocating any kind of public *327utility facility at or adjacent to a rail-highway crossing among the public utilities, municipal corporations or the Commonwealth in such proportions as the Commission may determine:
The compensation for damages which the owners of adjacent property taken, injured, or destroyed may sustain in the construction, relocation, alteration, protection, or abolition of any crossing under the provisions of this part, shall, after due notice and hearing, be ascertained and determined by the commission. Such compensation, as well as the cost of construction, relocation, alteration, protection, or abolition of such crossing, and 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, unless such proportions are mutually agreed upon and paid by the interested parties.
Act of July 3, 1963, P.L. 212, 66 P.S. § 1181 (Emphasis indicates 1963 amendment).
Nevertheless, our Court in Philadelphia v. Pennsylvania Public Utility Commission, supra, held that the P.U.C. had no power to allocate costs when the agreement had been “executed” in the mere sense of being signed. It then construed such “execution” as payment. The subliminal justification for this somewhat strained exegesis was the potential for constitutional problems in interfering with the utilities’ early 20th century street permit applications, which the majority construed to be preexisting “contracts”. These applications were required by then existing city ordinances.
I believe the majority opinion overrules that case by implication. I would make the implication express.
Furthermore, I believe it follows from the majority opinion that the Commission is the sole forum for finally determining the appropriate cost allocation subject only to appel*328late review where, but only where, rail-highway crossings are involved. The authority of the Commission to supersede existing contracts is, therefore, limited in respect to the allocation of costs only when an agreement on that subject has been fulfilled by actual payment. Such is not the case here.
. 66 Pa.C.S. § 508 currently provides:
The commission shall have power and authority to vary, reform, or revise, upon a fair, reasonable, and equitable basis, any obligations, terms, or conditions of any contract heretofore or hereafter entered into between any public utility and any person, corporation, or municipal corporation, which embrace or concern a public right, benefit, privilege, duty, or franchise, or the grant thereof, or are otherwise affected or concerned with the public interest and the general well-being of this Commonwealth. Whenever the commission shall determine, after reasonable notice and hearing, upon its own motion or upon complaint, that any such obligations, terms, or conditions are unjust, unreasonable, inequitable, or otherwise contrary or adverse to the public interest and the general well-being of this Commonwealth, the commission shall determine and prescribe, by findings and order, the just, reasonable, and equitable obligations, terms, and conditions of such contract. Such contract, as modified by the order of the commission, shall become effective 30 days after service of such order upon the parties to such contract.