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COMMONWEALTH PENNSYLVANIA v. PENNSYLVANIA POWER & LIGHT COMPANY (04/06/78)

decided: April 6, 1978.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND CITY OF HARRISBURG, A MUNICIPAL CORPORATION, PLAINTIFFS
v.
PENNSYLVANIA POWER & LIGHT COMPANY, A CORPORATION, DEFENDANT



Original jurisdiction in case of Department of Transportation of the Commonwealth of Pennsylvania and City of Harrisburg, a Municipal Corporation v. Pennsylvania Power and Light Company.

COUNSEL

George D. Wenick, Assistant Attorney General, with him Herbert G. Zahn, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, and Nathan H. Waters, Jr., Assistant City Solicitor, for plaintiff.

Carroll F. Purdy, with him Jack F. Aschinger, and Thomas & Thomas, for defendant.

Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 34 Pa. Commw. Page 595]

Plaintiffs, Department of Transportation (PennDOT) and the City of Harrisburg (City), have filed in this Court a complaint in equity seeking to compel the defendant, Pennsylvania Power and Light Company (PP&L), to relocate its utility lines and poles in a section of Cameron Street in the City so that a highway widening project may be completed. Presently before us are five preliminary objections of the defendant,

[ 34 Pa. Commw. Page 596]

    one which it has elected not to pursue, all raising questions of this Court's jurisdiction.

In considering this matter, we must initially note that preliminary objections admit as true all facts which are well pleaded and all inferences reasonably deducible therefrom. Bruhin v. Commonwealth, 14 Pa. Commonwealth Ct. 300, 320 A.2d 907 (1974). The following paragraphs of plaintiffs' complaint state its material bases:

3. Plaintiff, PennDOT, has found it necessary to widen Legislative Route 22023, Section C-11 and Legislative Route 139 Spur, Section 6 (commonly known as Cameron Street) in the City of Harrisburg for the benefit of the travelling public. The aforesaid sections of Cameron Street were added to the state highway system in 1933 and 1935 (see Act of June 3, 1933, P.L. 1492, No. 326, § 1 and Act of July 12, 1935, P.L. 793, § s[sic], as amended, 36 P.S. § 103.)

4. The defendant has certain pole line facilities located in public right-of-way on Cameron Street between highway engineering Stations 16 50 and 57 88.79 on Legislative Route 139 Spur, Section 6, and between Stations 57 88.79 to 106 65 in Legislative Route 22023, Section C-11, which must be relocated to another section within the public right-of-way in order to accommodate the proposed highway project.

5. The defendant's said facilities are located in public right-of-way pursuant to a license granted by the City dated June 26, 1899, the rights thereof having accrued to PennDOT as a result of the highway having ...


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