The opinion
Concurring and Dissenting Opinion by
President Judge Crumlish, Jr.
I concur that the Public Utility Code does not require the Commission to consider evidence of changed *616 conditions before rescinding or amending a prior order. I also agree that it is authorized to order the entire structure’s repair and to allocate costs accordingly. I am convinced, however, that the Commission erred by ordering the Pittsburgh and Lake Erie Bail-road and Fayette County to contribute to the structure’s painting costs.
The Public Utility Commission, a statutory creature, has only those powers clearly conferred upon it by the Legislature. See Allegheny County Port Authority v. PUC, 427 Pa. 562, 567 , 237 A.2d 602, 605 (1967). There is no explicit statutory wording delineated, nor the strong and necessary implication therefrom, which would permit the PUC to allocate painting costs in this case. Code Section 2702(b) 1 provides, in part, that:
The Commission is hereby vested with exclusive power to . . . determine and prescribe by . . . order . . . the manner in which such crossings may be constructed, altered, relocated, suspended or abolished, and the manner and conditions in or under which such crossings shall be maintained, operated, and protected to effectuate the prevention of accidents and the promotion of the safety of the public. (Emphasis added.)
The Commission’s power to regulate maintenance is clearly qualified and explicitly limited to effectuating the prevention of accidents and the promotion of public safety. Since Section 2704(a) of the Code 2 does not authorize the PUC to allocate maintenance costs, any regulation of maintenance responsibility is *617 subject to the limitations of Section 2702(b). 3 The Pennsylvania Department of Transportation concedes that the painting of the Layton Bridge is a maintenance item. 4 It follows then that the Commission cannot allocate this expenditure unless it determines that the cost is related to public safety and accident prevention.
It is my understanding that the payment of maintenance costs is clearly a condition which, under Section 2702(b), must be related to public safety promotion and accident prevention. Thus, I would reverse that part of the PUC’s order which requires the Railroad and the County to contribute to the painting expenditure because the record is completely devoid of a PUC determination that the painting is necessary “to effectuate the prevention of accidents and the promotion of the safety of the public.” 5 The painting costs should be borne exclusively by the Commonwealth as provided by Section 701 of the State High *618 way Law, 6 which requires the Commonwealth to maintain bridges on State highways, with certain exceptions not here applicable.
66 Pa. C. S. §2702 (b).
66 Pa. C. S. §2704(a) empowers the PUC to allocate the cost of railroad crossing “construction, relocation, alteration, protection, or abolition” among the public utilities, concerned .municipalities and the Commonwealth.
The confusing interplay between Sections 2702(b) and 2704(a) demonstrates that the PUO’s authority in this matter is not clearly established. Since the Oommission’s power must be construed strictly with reference to the enabling legislation, see Allegheny County Port Authority v. PUC, the courts should not extend the PUO’S' domain where the statutory basis for such authority is not sufficiently explicit.
Milton H. Davis, PennDOT’s Assistant Grade Engineer, testified that the bridge plan’s painting item, which constitutes $150,-000.00 of the $489,934.00 estimate, is not related to the rehabilitation of the structure’s weight-bearing capacity.
This does not mean that the PUC is prohibited from allocating the painting or other general maintenance costs of bridge rehabilitation projects within this jurisdiction. If the PUC relates the maintenance expenditure to safety promotion and accident prevention, the order, in my opinion, would be legally sound. Since, however, the PUC has only those powers explicitly conferred upon it by statute, I am constrained to conclude that the order in this case, as it relates to the allocation of painting costs, is without statutory authority.
The Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. §670-701.