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NEWPORT HOMES v. JACOB KASSAB (02/06/75)

decided: February 6, 1975.

NEWPORT HOMES, INC., APPELLANT,
v.
JACOB KASSAB, SECRETARY, DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, APPELLEE. ASTRO MANUFACTURING CO., INC., APPELLANT, V. JACOB KASSAB, SECRETARY, DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, APPELLEE. STANDARD COACH COMPANY, INC., APPELLANT, V. JACOB KASSAB, SECRETARY, DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, APPELLEE. BURLINGTON HOMES, INC., APPELLANT, V. JACOB KASSAB, SECRETARY, DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, APPELLEE. POLORON HOMES OF PENNSYLVANIA, INC., APPELLANT, V. JACOB KASSAB, SECRETARY, DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, APPELLEE. HERRLI INDUSTRIES, INC., APPELLANT, V. JACOB KASSAB, SECRETARY, DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, APPELLEE. REDMAN MOBILE HOMES, APPELLANT, V. JACOB KASSAB, SECRETARY, DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, APPELLEE. JACOB KASSAB, SECRETARY, DEPARTMENT OF TRANSPORTATION, COMMONWEALTH OF PENNSYLVANIA, APPELLEE, V. LIBERTY HOMES, INC., APPELLANT



Appeals from the Order of the Secretary of the Department of Transportation denying applications for special hauling permits of Newport Homes, Inc., Astro Manufacturing Co., Inc., Standard Coach Company, Inc., Burlington Homes, Inc., Poloron Homes of Pennsylvania, Inc., Herrli Industries, Inc., Redman Mobile Homes and Liberty Homes, Inc. pursuant to final directive of January 3, 1974.

COUNSEL

Arthur R. Littleton, with him R. Bruce Whitney and Morgan, Lewis & Brockius, for appellants.

Stuart J. Moskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Israel Packel, Attorney General, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Mencer, Rogers and Blatt. Judges Kramer and Wilkinson, Jr. did not participate. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 17 Pa. Commw. Page 320]

Consolidated for argument and disposition are the appeals of Appellants, eight Pennsylvania-based manufacturers of modular and mobile homes, from the denial by the Pennsylvania Department of Transportation (Penndot) of their applications for special hauling permits for the primary movement*fn1 of fourteen feet wide mobile homes and requests for hearings thereon.

The applications were rejected pursuant to a "final directive," issued by Penndot on January 3, 1974, which limited the issuance of special "oversize" permits for fourteen feet wide units to those in production by January 31, 1974, and in transit by February 28, 1974. This directive effectively ended an experimental period conducted by Penndot throughout the Fall of 1973 during which special hauling permits for fourteen feet wide mobile home and modular units were routinely issued. On February 14, 1974, Newport Homes, Inc., Burlington Homes, Inc. and Poloran Homes of Pennsylvania, Inc. (Appellants herein) filed a complaint in the United States District Court for the Middle District of Pennsylvania to enjoin then Secretary of Penndot, Jacob Kassab, from discontinuing this policy of issuing fourteen feet wide special permits. A preliminary injunction was denied by the District Court on March 20, 1974. Newport Homes v. Kassab, Civil No. 74-944 (M.D. Pa., filed March 20, 1974). Thereafter, Appellants filed applications in the appropriate district offices of Penndot for special hauling permits for the movement of fourteen feet wide units for which Appellants had received purchase

[ 17 Pa. Commw. Page 321]

    orders. Penndot rejected*fn2 each application and request for hearing thereon because the applications failed to comply with the width limitations of its "final directive."

The instant appeals to this Court followed.

Appellants contend that the "final directive," implemented internally by Penndot, violates and sub silentio alters the provisions of Regulation 800 of the Department of Transportation, and, as applied to them, violates their Fourteenth Amendment rights to Due Process and Equal Protection. Penndot has moved to quash the appeals on the ground that its actions in denying the permits did not constitute "adjudications" within the meaning of the Administrative Agency Law, Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. § 1710.1 et seq., or otherwise an act of a judicial nature from which an appeal will lie. Before reaching this question, however, we must briefly dispose of Appellants' contention that their right of appeal, guaranteed by Article V, Section 9 of the Pennsylvania Constitution of 1968,*fn3 was implemented by Section 403(1) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 637, as amended, 17 P.S. § 211.403(1) (Supp. 1974-1975), irrespective of whether the administrative action appealed from is judicial or quasi-judicial in nature. This position we rejected in Manheim Township School District v. State Board of Education, 1 Pa. Commonwealth Ct. 627,

[ 17 Pa. Commw. Page 322276]

A.2d 561 (1971). Manheim was recently reaffirmed in LaCamera v. Board of Probation and Parole, 13 Pa. ...


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