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decided: January 19, 1973.


Appeal from decree of Court of Common Pleas, Civil Division, of Allegheny County, April T., 1972, No. 313, in re Pete Flaherty, individually and as Mayor of the City of Pittsburgh et al. v. Port Authority of Allegheny County et al.


David W. Craig, with him Robert N. Hackett, and Baskin, Boreman, Wilner, Sachs, Gondelman & Craig, for Allegheny Port Authority, appellant.

John J. Hickton, Deputy Solicitor, with him Francis A. Barry, County Solicitor, for Board of County Commissioners of Allegheny County, appellants.

Albert D. Brandon, with him Eugene B. Strassburger, III, Daniel M. Curtin, Assistant City Solicitor, and Ralph Lynch, Jr., City Solicitor, for appellees.

Harold R. Schmidt and Edward C. Schmidt, with them Roger Curran, and Rose, Schmidt and Dixon, for amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Chief Justice Jones. Concurring Opinion by Mr. Justice Roberts. Mr. Justice Nix joins in this concurring opinion. Dissenting Opinion by Mr. Justice Eagen.

Author: Jones

[ 450 Pa. Page 512]

Plaintiffs, individually and as mayors of thirteen metropolitan Pittsburgh municipalities,*fn1 filed this action in equity seeking a preliminary injunction against construction of the rapid mass transit project known as the "Early Action Program" ("Early Action"). The preliminary injunction hearing commenced on January 19, 1972, before the Honorable Anne X. Alpern and, after sixty-nine days of hearings lasting until May 8, 1972, Judge Alpern issued a preliminary injunction. A final hearing was conducted on September 11-15, 1972, and a decree nisi granting the injunction was entered November 6, 1972. Defendant Port Authority of Allegheny County ("Authority") and the Board of County Commissioners of Allegheny County ("Commissioners") petitioned this Court for the assumption of plenary jurisdiction under Section 205 of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P. L. 673, 17 P.S. ยง 211.205. The petition for plenary jurisdiction was granted per curiam on November 15, 1972.

Early Action is a multifarious mass transit system involving: (1) a Transit Expressway line from downtown Pittsburgh to South Hills Village, 10.6 miles in length; (2) an exclusive grade-separated bus highway called the "South PATway" which is four miles long and which bypasses the Liberty Tubes; (3) an eight-mile exclusive, grade-separated bus highway called the "East PATway" which bypassess the Squirrel Hill Tunnels and the Penn-Lincoln Parkway; and (4) the renovation of the Library trolley line.

The rapid transit prototype ((1) supra) is called "Skybus".*fn2 It was designed and engineered by the

[ 450 Pa. Page 513]

Westinghouse Electric Corporation and will be installed as the Transit Expressway vehicle if its prototype meets with performance specifications being prepared by Kaiser Engineers.

Early Action had its genesis in a June 1, 1961, study of mass transit prepared by the engineering firm of Coverdale and Colpitts under direction of the Port Authority.*fn3 The study recommended against the use of railroad commuter facilities, while encouraging expanded highway capacity between downtown Pittsburgh and its eastern suburbs.

On October 27, 1965, the Authority commissioned Parsons, Brinckerhoff, Quade and Douglas ("PBQ&D"), consulting engineers, to prepare a study of the rapid transit needs and solutions for Allegheny County. PBQ&D determined that any general plan for rapid transit should include highspeed corridors from downtown Pittsburgh to the east and south where the highest density of commuter travel could be expected. The study proposed three transit routes approximately geographically concomitant with the East PATway, South PATway and Transit Expressway, which are now incorporated by the Early Action Program.

On July 15, 1968, the Westinghouse Electric Corporation offered to undertake systems management of a preliminary engineering study of the Skybus concept and its application to the Transit Expressway, upon

[ 450 Pa. Page 514]

    the condition that Westinghouse not be excluded from bidding upon Transit Expressway equipment. On August 15, 1968, the Authority formally adopted the Early Action Program, including the South Hills Village Transit Expressway, and simultaneously installed Westinghouse as systems manager for the Transit Expressway engineering study.

On June 4, 1970, the defendants County Commissioners committed Allegheny County to the expenditure of one-third of the cost of constructing Early Action, with one-half of the County commitment to be reimbursed by the Commonwealth.

By December 31, 1971, the defendant Authority had expended an amount in excess of $9,000,000 exclusive of prospective contractual commitments and expenses incurred in connection with the Skybus prototype project.

Plaintiffs brought this action to enjoin construction of Early Action on January 10, 1972. On November 6, 1972, the court below enjoined the expenditure of additional funds for the implementation of Early Action unless and until defendants comply with the following provisions of the court's decree nisi:

"1. The Port Authority shall comply with the mandatory requirements of the Port Authority Act of 1959, as amended, by submitting to the [County Commissioners] a revised plan of integrated operation for the Early Action Program . . . [containing] the pattern of integrated operation and schedules showing accurate and current estimates of revenue and expenditures for the [Program], and the proposed method of financing the [Program].

"2. The Port Authority shall prepare a sound financial plan to pay the existing outstanding indebtedness. . . .

"3. The Port Authority shall prepare and recommend a sound financial plan to pay the currently estimated financial requirements for the [Program]. This

[ 450 Pa. Page 515]

    financial plan shall then be submitted to the County Commissioners for their approval. . . .

"4. The Port Authority shall prepare an accurate estimate of . . . the cost of maintaining and operating the Early Action Program. . . . These cost estimates shall be based on updated wage rates and construction costs. These schedules shall be submitted to the County Commissioners for their approval or rejection. . . .

"5. The Port Authority shall obtain a qualified, independent transportation engineering firm's evaluation of the financial and technological feasibility of the Transit Expressway Revenue Line (Skybus) . . . . The independent transportation engineering firm shall be chosen after consultation with and agreement by the plaintiffs.

"6. Since the acquisition of the rights of way of the Penn-Central Railroad are indispensable to the Early Action Program, the Port Authority shall obtain and submit . . . tentative agreements evidencing the willingness of the trustees of the Penn-Central Railroad to convey these rights. . . .

"7. The Port Authority shall submit . . . evidence of its ability to obtain from the Interstate Commerce Commission and the Public Utilities Commission, and from other governmental agencies and municipalities whose approval is required for the implementation of the Early Action Program, the permits and approvals necessary for the completion of the Program."

A determination of whether the decree nisi of the court below was properly imposed upon these defendants necessitates the resolution of four basic questions: (1) Has the Port Authority acted in such abuse of its administrative discretion that the court below has properly enjoined the expenditure of funds necessary to effect the Early Action Program? (2) Does the dual posture ...

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