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PLYMOUTH TOWNSHIP v. COMMONWEALTH PENNSYLVANIA (09/14/78)

decided: September 14, 1978.

PLYMOUTH TOWNSHIP, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION AND JAMES B. WILSON, SECRETARY OF THE DEPARTMENT OF TRANSPORTATION, RESPONDENTS



Original jurisdiction in case of Plymouth Township v. Pennsylvania Department of Transportation and James B. Wilson, Secretary of the Department of Transportation.

COUNSEL

Harris F. Goldrich, with him Arthur Lefkoe, and, of counsel, Wisler, Pearlstine, Talone, Craig and Garrity, for petitioners.

John M. Hrubovcak, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for respondents.

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

Author: Mencer

[ 37 Pa. Commw. Page 572]

Plymouth Township has filed in this Court a petition for review, seeking to enjoin the Pennsylvania Department of Transportation (PennDOT) and James B. Wilson, Secretary of PennDOT, from opening a section of the Mid-County Expressway (I-476) extending from the Schuylkill Expressway in West Conshohocken to Ridge Pike in Plymouth Township. PennDOT has filed preliminary objections, contending, inter alia, that the petition for review fails to allege facts which would entitle the Township to the requested relief. We agree and sustain the preliminary objections.

The Township appears to admit -- as indeed no one could, under existing case law, seriously challenge -- that the decision as to where and when to build a highway rests in the sound discretion of PennDOT. See, e.g., Snelling v. Department of Transportation, 27 Pa. Commonwealth Ct. 276, 286-87, 366 A.2d 1298,

[ 37 Pa. Commw. Page 5731304]

(1976); Borough of White Oak v. Department of Transportation, 25 Pa. Commonwealth Ct. 432, 360 A.2d 825 (1976).

By a host of authorities in our own and other jurisdictions it has been established as an elementary principle of law that courts will not review the actions of governmental bodies or administrative tribunals involving acts of discretion, in the absence of bad faith, fraud, capricious action or abuse of power; they will not inquire into the wisdom of such actions or into the details of the manner adopted to carry them into execution. It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency's duties or functions. That the court might have a different opinion or judgment in regard to the action of the agency is not a sufficient ground for interference; judicial discretion may not be substituted for administrative discretion. (Footnotes omitted, emphasis in original.)

Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 572-73, 109 A.2d 331, 334-35 (1954).

It is presumed that the acts of public officials and agencies are within the limits of their discretion. Snelling, supra.

In Snelling, we held that allegations of increased traffic, increased probability of accidents, and increased air pollution were insufficient to withstand PennDOT's preliminary objections. The same is true here. The complaint alleges that the opening ...


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