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NANCY M. KLINK AND OTHERS v. COMMONWEALTH PENNSYLVANIA (03/02/77)

decided: March 2, 1977.

NANCY M. KLINK AND OTHERS, PLAINTIFFS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DEFENDANT



Original jurisdiction in case of Nancy M. Klink, et al., Plaintiffs v. Commonwealth of Pennsylvania, Department of Transportation, Defendant.

COUNSEL

Thomas W. Scott, with him Charles B. Pursel, and Killian & Gephart, for plaintiffs.

Richard S. Herskovitz, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for defendant.

Judges Kramer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 29 Pa. Commw. Page 107]

Nancy M. Klink and other named individuals (plaintiffs) have filed a petition for review in the nature of a complaint in equity within the original exclusive jurisdiction of this Court*fn1 against the Pennsylvania Department of Transportation (PennDOT). PennDOT has filed preliminary objections in the nature of

[ 29 Pa. Commw. Page 108]

    a demurrer which allege that the complaint fails to state a cause of action.

The plaintiffs allege that PennDOT intends to remove certain maple trees situate within a state highway right-of-way in Scott Township, Columbia County, Pennsylvania, located on the north side of Old Berwick Road adjacent to the land of the New Rosemont Cemetery because the trees allegedly constitute a traffic hazard. They challenge this action by further charging "that the subject trees do not create a hazard to the community and neighborhood for aesthetic and environmental and historical reasons," and they have requested an injunction restraining PennDOT from removing the trees. PennDOT, however, has claimed an absolute statutory right to remove the trees pursuant to Section 410 of the State Highway Law*fn2 which provides, in part, as follows:

The Department of Transportation shall have the absolute right to trim, cut and remove any trees, grasses, shrubs and vines growing within the legal right of way of any State highway, and to trim and cut away any trees, grasses, shrubs and vines growing on adjacent property in so far as they overhang or encroach upon the legal right of way of any State highway. (Emphasis added.)

36 P.S. ยง 670-410.

Inasmuch as "'preliminary objections (or pleadings in the nature thereof) admit as true all facts which are well and clearly pleaded, but not the pleader's conclusions or averments of law. . . .'" Commonwealth's Crosstown Expressway Appeal, 3 Pa. Commonwealth Ct. 1, 4, 281 A.2d ...


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