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CHARLES D. SNELLING v. DEPARTMENT TRANSPORTATION PENNSYLVANIA ET AL. (12/02/76)

decided: December 2, 1976.

CHARLES D. SNELLING, INDIVIDUAL, ET AL., PETITIONERS
v.
DEPARTMENT OF TRANSPORTATION OF PENNSYLVANIA ET AL., RESPONDENTS



Original jurisdiction in the Commonwealth Court of Pennsylvania in case of Charles D. Snelling, Individual, and Allentown-Lehigh County Chamber of Commerce, and City of Allentown, Paul M. Burke, Individual, Nestor's Sporting Goods, Inc., and Rhoda E. Royer, Petitioners v. Department of Transportation of Pennsylvania, William H. Sherlock, Secretary of the Department of Transportation, and Lehigh Valley Associates, Respondents.

COUNSEL

Dennis W. Alexander, with him John E. Roberts, Armin Feldman, and Roberts, Traud and Wallitsch, for petitioners.

Bernard Chanin, with him Howard Gittis, Herman C. Fala, and Wolf, Block, Schorr and Solis-Cohen, for respondent, Lehigh Valley Associates.

Robert H. Raymond, Jr., Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for State respondents.

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

Author: Crumlish

[ 27 Pa. Commw. Page 278]

This matter comes before us on preliminary objections to an Amended Petition for Review.*fn1 The Petitioners are: Charles D. Snelling; Allentown-Lehigh County Chamber of Commerce; the City of Allentown; Paul M. Burke; Nestor's Sporting Goods, Inc.; and Rhoda E. Royer. The Respondents are: the Commonwealth of Pennsylvania, Department of Transportation (PennDOT); William H. Sherlock, Secretary of PennDOT (Secretary); and Lehigh Valley Associates (Lehigh Valley).*fn2

The Amended Petition for Review challenges PennDOT's issuance of highway occupancy permits to Lehigh Valley for the construction of certain highway improvements.

We will briefly summarize the complex background of this controversy.

During the year 1966 plans were announced for the development of a shopping mall in Whitehall Township, Lehigh County. The mall was to be called the Lehigh Valley Mall (Mall). The road which is the subject of this controversy is Pennsylvania Route 145, also known as MacArthur Road. This road is the western boundary of the Mall site. Another shopping center, known as Whitehall Mall, is located just north of the Mall along MacArthur Road.

At some time prior to 1970, PennDOT and Whitehall Township developed a plan to widen MacArthur Road. Public hearings were held on the proposed improvements

[ 27 Pa. Commw. Page 279]

    which included construction of a medial barrier along the portion of the road which was to be widened. The then owner of the Mall site proposed a plan to build a tunnel under the improved portion of MacArthur Road which was adjacent to the Mall. The tunnel was to be used by traffic exiting from the Mall. The tunnel plan was approved by Whitehall Township and PennDOT. Petitioners allege that all of the expert reports and studies available to PennDOT at that time recommended the tunnel as the most desirable solution to the anticipated traffic problem. Although the medial strip and the tunnel have been built, the service ramp system necessary for the tunnel's use has not.

In December, 1972, Lehigh Valley acquired the Mall site. Whitehall Township then engaged a traffic consulting firm which rejected the tunnel idea and recommended instead that an opening be cut in the medial barrier at the Mall with left-turn lanes and traffic signals. Petitioners claim that this report is not only unsupported by any of the scientific data, but that it also ignores persuasive data suggesting more desirable alternative solutions. Additionally, Petitioners claim that the plans had not been recommended by PennDOT's own engineers. However, in January, 1975, then Secretary of PennDOT, Jacob Kassab, issued permits for construction of the opening in the medial barrier.

The plan to install an opening in the medial barrier included several other improvements in the vicinity such as the installation of traffic signals at several points along MacArthur Road, the modification of existing traffic signals on nearby roads, and the widening of a road intersecting MacArthur Road at the south boundary of the Mall. Petitioners have alleged that all of these plans are based upon faulty data.

[ 27 Pa. Commw. Page 280]

The plans to widen MacArthur Road will require the acquisition of additional right-of-way which PennDOT has refused to acquire by condemnation. Instead, the right-of-way will be acquired by Lehigh Valley through private purchase.

Petitioners raise four legal arguments in support of their position. First, the Secretary erred in failing to hold hearings as required by Section 2002(b) of the Administrative Code,*fn3 prior to issuance of the highway occupancy permits. Second, the Secretary's decision to implement the plan for opening the medial barrier was unsupported by any rational evidence and was, therefore, an act of bad faith and an abuse of discretion. Third, the Secretary has failed to meet his duty as trustee of the public natural resources under Article I, Section 27 of the Pennsylvania Constitution by approving a plan which is potentially harmful to the environment without considering alternative schemes which would reduce environmental incursions. Fourth, the present plan was conceived solely for the benefit of a private party, i.e., the developer, Lehigh Valley, and therefore creates an arbitrary and unreasonable discrimination by favoring the Mall with a traffic control program uniquely suited to its needs.

Initially, we note that in ruling upon preliminary objections, we must accept as true all well and clearly pleaded facts, Metropolitan Hospital v. Dept. of Public Welfare, 21 Pa. Commonwealth Ct. 116, 343 A.2d 695 (1975); Johnston v. Board of Probation and Parole, 20 Pa. Commonwealth Ct. 69, 339 A.2d 835 (1975), but not conclusions or averments of law. Firing v. Kephart, 18 Pa. Commonwealth Ct. 578, 336 A.2d 470 (1975). Since the preliminary objections of both respondents are similar, we will consolidate them for the purpose of adjudication.

[ 27 Pa. Commw. Page 281]

In Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, Pa. , 346 A.2d 269 (1975), our Supreme Court summarized the tests applicable to the standing issue:

The established formulation of what is necessary to render a person 'aggrieved' by an order or other action, which originated in Lansdowne Board of Adjustment's Appeal, 313 Pa. 523, 525, 170 A. 867, 868 (1934), appeared most recently in Man O'War Racing Association, Inc. v. State Horse Racing Commission, 433 Pa. 432, 441, 250 A.2d 172, 176-77 (1969):

'[The party] must have a direct interest in the subject-matter of the particular litigation, otherwise he can have no standing to appeal. And not only must the party desiring to appeal have a direct interest in the particular question litigated, but his interest must be immediate and pecuniary, and not a remote consequence of the judgment. The interest must also be substantial.' Keystone Raceway Corp. v. ...


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