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J. BERMAN & SONS v. PENNSYLVANIA DEPARTMENT TRANSPORTATION (10/07/75)

decided: October 7, 1975.

J. BERMAN & SONS, INC., PLAINTIFF
v.
PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, DEFENDANT



Original jurisdiction in case of J. Berman & Sons, Inc. v. Pennsylvania Department of Transportation.

COUNSEL

Samuel B. Russell, with him Ryan, Russell & McConaghy, William H. Egli, and Egli, Walter, Reilly and Wolfson, for plaintiff.

Lionel B. Gumnit, Assistant Attorney General, with him Herbert G. Zahn, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant.

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

Author: Blatt

[ 21 Pa. Commw. Page 318]

We are asked here to consider a motion by the plaintiff for summary judgment in a mandamus action against the Pennsylvania Department of Transportation (PennDOT). According to the facts as pleaded in the complaint and admitted in PennDOT's answer, the Department of Highways*fn1 filed an application on April 3, 1969 with the Pennsylvania Public Utility Commission (PUC) with respect to the construction of a highway crossing over rail tracks of the Reading Company in the Borough of Palmyra. The proposed crossing was to extend over and across property owned in fee by the plaintiff, and construction of the highway would apparently also obstruct access previously afforded to the plaintiff via several private industrial tracks used for a rail crane and via several private roadways. After having held a hearing on May 21, 1970, the PUC approved the application. It therefore appropriated the private property necessary in connection with the proposed project and additionally ordered:

"13. That Department of Highways, at its sole cost and expense, furnish all material and do all work necessary to effect the vacation, relocation, removal or demolition of any nonutility structures, including occupied dwellings, located upon property required for the construction of the project in accordance with this order.

[ 21 Pa. Commw. Page 319]

* * * *

"20. That Borough of Palmyra, having agreed so to do pay all compensation for damages due to the owners, exclusive of Reading Company, as hereinabove provided, for property taken, injured or destroyed by reason of the construction of the railroad-highway crossing project, in accordance with this order."

No appeal was taken from that order.

Thereafter a dispute arose as to the interpretation of the PUC order, especially with respect to whether or not it was PennDOT's responsibility to remove certain waste material located in a junk pile on the plaintiff's property. Removal of that material was necessary before PennDOT could relocate the crane rail tracks. The plaintiff, therefore, petitioned the PUC to order removal ...


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