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DAVID W. BRUHIN v. JACOB KASSAB (03/25/74)

decided: March 25, 1974.

DAVID W. BRUHIN, HARRY W. KINGHAM AND GEORGE NAGORNY, PLAINTIFFS,
v.
JACOB KASSAB, SECRETARY OF TRANSPORTATION OF THE COMMONWEALTH OF PENNSYLVANIA, AND MAURICE K. GODDARD, SECRETARY OF THE DEPARTMENT OF ENVIRONMENTAL RESOURCES OF THE COMMONWEALTH OF PENNSYLVANIA, DEFENDANTS, AND KEVY KAISERMAN T/A SPRINGFIELD ASSOCIATES, AND TOWNSHIP OF SPRINGFIELD, INTERVENING DEFENDANTS



Original jurisdiction in case of David W. Bruhin, Harry W. Kingham and George Nagorny v. Jacob Kassab, Secretary of Transportation of the Commonwealth of Pennsylvania, and Maurice K. Goddard, Secretary of Department of Environmental Resources of the Commonwealth of Pennsylvania, Defendants, and Kevy Kaiserman t/a Springfield Associates, and Township of Springfield, Intervening Defendants.

COUNSEL

Charles G. Nistico, with him, of counsel, Edward F. Muller, Jr., for plaintiffs.

John P. Krill, Special Assistant Attorney General, with him David A. Johnston, Jr., Assistant Attorney General, Gregory Ghen, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for defendants.

Richard M. Rosenbleeth, with him Howard Saul Marcu, and, of counsel, Blank, Rome, Klaus & Comisky, for intervening defendants.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 12 Pa. Commw. Page 456]

This case comes within the original jurisdiction of this Court and is presently before us for the disposition of Preliminary Objections to the Complaint.

Intervening Defendants, Springfield Associates (Associates) is in the process of constructing a shopping center, known as "Springfield Mall" at the northwest corner of Baltimore Pike and Sproul Road, in Springfield Township. In the process of the development of this mall, the Pennsylvania Department of Transportation issued to Associates Highway Occupancy Permit No. P-177064 which authorized Associates to: "Install curb, sidewalk, acceleration lanes, deceleration lanes,

[ 12 Pa. Commw. Page 457]

    traffic signals and divisors on Baltimore Pike (L.R. Bo) and Sproul Road (L.R. 225). Permittee responsible for all restoration to State Specifications (408) revised 1970."

This Action in Mandamus instituted by three individuals, two of whom reside in Springfield Township and one of whom resides in the Borough of Swarthmore, seeks to require the Secretary of the Department of Transportation to revoke this Highway Occupancy permit and to require him to hold public hearings and to consult with other Commonwealth Departments before reissuing the permit.

The gravamen of Plaintiffs' present action resides in Counts three and four of their Complaint in Mandamus. Plaintiffs cite Section 2002 of The Administrative Code, Act of April 9, 1929, P.L. 177, Article XX, as amended by the Act of May 6, 1970, P.L. 356, 71 P.S. ยง 512(A)(15) which provides, inter alia, that:

"The Department of Transportation in accord with appropriations made by the General Assembly, and grants of funds from Federal, State, Regional and local or private ...


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