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CLEARVIEW LAND DEVELOPMENT COMPANY v. JACOB G. KASSAB (05/19/76)

decided: May 19, 1976.

CLEARVIEW LAND DEVELOPMENT COMPANY, INC. AND ROMA ASSOCIATES, INC., PLAINTIFFS
v.
JACOB G. KASSAB, SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, THE CITY OF PHILADELPHIA, THE REDEVELOPMENT AUTHORITY OF THE CITY OF PHILADELPHIA AND THE CITY OF PHILADELPHIA, DEPARTMENT OF PUBLIC PROPERTY, DEFENDANTS



Original jurisdiction in case of Clearview Land Development Co., Inc. and Roma Associates, Inc. v. Jacob G. Kassab, Secretary of the Commonwealth of Pennsylvania, Department of Transportation, and the Redevelopment Authority of the City of Philadelphia and the City of Philadelphia, and the City of Philadelphia, Department of Public Property.

COUNSEL

Frank L. Tamulonis, Jr., with him Kassab, Cherry & Archbold, for plaintiffs.

Stuart M. Bliwas, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant, Secretary of Transportation.

David A. Rosenblum, Assistant City Solicitor, with him Theodore H. Lunine, Deputy in Charge of Counseling, Stephen Arinson, Chief Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for defendants, City of Philadelphia and City of Philadelphia Department of Public Property.

David S. Winston, with him Peter A. Galante, for defendant, Authority.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by President Judge Bowman. Judge Kramer did not participate in the decision in this case.

Author: Bowman

[ 24 Pa. Commw. Page 534]

Clearview Land Development Company, Inc. and Roma Associates, Inc. (plaintiffs) filed a complaint in equity in this Court naming the Secretary of Transportation of the Commonwealth (Secretary), the Redevelopment Authority of the City of Philadelphia and the City of Philadelphia as defendants, whose alleged individual, combined and/or concerted actions threaten to substantially impair plaintiffs' ingress and egress to their property.*fn1 The parcel of land in question is utilized for business purposes and lies in Delaware County adjacent to the City of Philadelphia.

Specifically, as to the Secretary, plaintiffs allege the Secretary's plan to widen 84th Street, a state highway abutting plaintiffs' land, to construct curbing along it and to erect a median barrier along its middle line interferes with plaintiffs' access either in itself or in conjunction with action of other defendants. Plaintiffs ask this Court to enjoin the Secretary from proceeding with the planned improvements on 84th Street and award damages for the Secretary's part in the alleged interference with access. Alternately, plaintiffs ask that the Secretary be required to filed a declaration of taking.

[ 24 Pa. Commw. Page 535]

Although all defendants have raised preliminary objections, we first consider only those objections posed by the Secretary. Initially, the Secretary raises the doctrine of sovereign immunity as it relates to certain types of relief plaintiffs seek against him in his official capacity. He also raises an objection in the nature of a demurrer, alleging the failure to state a cause of action in equity as against the Secretary, and alternately, want of jurisdiction in equity because of the existence of an adequate and complete remedy at law.

The deficiencies of plaintiffs' complaint against the Secretary, in part, revolve around a lack of sufficient well pleaded factual averments to support plaintiffs' theory that the Secretary in any way acted unlawfully or unconstitutionally in his plans to widen and improve 84th Street. Averments 41 through 51, inclusive, dealing specifically with the Secretary's actions, contain no factual averments supportive of a conclusion that he is acting illegally or unconstitutionally. Certainly, plaintiffs cannot question the Secretary's right to construct highways or take land for that purpose. Nor are there any well pleaded factual averments in plaintiffs' complaint supporting the bald legal conclusion that the Secretary is acting in concert with the other defendants so as to deprive plaintiffs of access to their property.

The law concerning the application of the doctrine of sovereign immunity to equity actions against state officials was enunciated by Mr. Chief Justice Jones in Philadelphia Life Insurance Company v. ...


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