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ORVILLE D. ANDERSON AND DOROTHA ANDERSON v. DAVID L. SHAFFER (01/11/79)

decided: January 11, 1979.

ORVILLE D. ANDERSON AND DOROTHA ANDERSON, HUSBAND AND WIFE, PLAINTIFFS
v.
DAVID L. SHAFFER, EDGAR RAMSEY AND F. WAYNE WOODS, SUPERVISORS OF EAST LACKAWANNOCK TOWNSHIP ET AL., DEFENDANTS



Original jurisdiction in case of Orville D. Anderson and Dorotha Anderson, husband and wife v. David L. Shaffer, Edgar Ramsey and F. Wayne Woods, Supervisors of East Lackawannock Township, Mercer County; East Lackawannock Township, a political subdivision of Pennsylvania; and Commonwealth of Pennsylvania, Department of Transportation.

COUNSEL

Terry K. Wheeler, with him Michael Halliday, for plaintiffs.

Anna Belle Jones and Arthur H. Marateck, Assistant Attorney General, with them Stranahan & Stranahan; Robert W. Cunliffe, Deputy Attorney General; and Gerald Gornish, Acting Attorney General, for defendants.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 39 Pa. Commw. Page 637]

On May 24, 1977, Orville D. Anderson and his wife (Petitioners) filed a petition for review in the nature of mandamus with this Court seeking to compel the Department of Transportation (PennDOT) and/or East Lackawannock Township (Township) and its supervisors to open, maintain and improve an access road to Petitioner's property. The Township and PennDOT have filed preliminary objections in the nature of a demurrer to the petition.

In 1963, Petitioners' property became landlocked as a result of the condemnation of a portion of their land, occasioned by the construction of an interchange of an interstate highway. Petitioners allege that, pursuant to an agreement entered into between the Petitioners and PennDOT, an access road to their property was constructed. They claim that PennDOT has

[ 39 Pa. Commw. Page 638]

    since refused to maintain this road; that in January of 1972, PennDOT notified Township that Section 12 of the Act of May 29, 1945 (Act), P.L. 1108, as amended, 36 P.S. ยง 2391.12, required it to maintain the road, but that Township also refused to provide maintenance. The Petitioners further allege that in the interim between the construction of the road and the notification of Township of its alleged statutory responsibilities, the road was partially excavated by persons unknown, and has, in fact, ceased to be usable.

In reviewing preliminary objections, we are guided by the principles enunciated in Gekas v. Shapp, 469 Pa. 1, 364 A.2d 691 (1976):

The standards for sustaining preliminary objections in the nature of a demurrer are quite strict. A demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law. In order to sustain the demurrer, it is essential that the plaintiff's complaint indicate on its face that his claim cannot be sustained, and the law will not permit recovery. If there is any doubt, this should be resolved in favor of overruling the demurrer. (Citations omitted.)

469 Pa. at 5-6, 364 A.2d at 693.

Township cites two specific grounds for its demurrer. Initially, it contends that the road in question is not a service highway within the meaning of the Act and that it is not, therefore, obliged to maintain such a road. See Section 12 of the Act. The petition for review alleges that the access road was a local service highway. This allegation is supported by PennDOT's admission that the road was constructed as a local service highway pursuant to the ...


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