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CITY PHILADELPHIA ET AL. v. HONORABLE MILTON J. SHAPP ET AL. (07/17/79)

decided: July 17, 1979.

CITY OF PHILADELPHIA ET AL., PETITIONERS
v.
HONORABLE MILTON J. SHAPP ET AL., RESPONDENTS



Original jurisdiction in case of City of Philadelphia, Frank L. Rizzo and David J. Damiano v. Milton J. Shapp and James B. Wilson.

COUNSEL

John M. McNally, Jr., First Deputy City Solicitor, with him Norman R. Segal, Assistant City Solicitor, and Sheldon L. Albert, City Solicitor, for plaintiffs.

Stuart J. Moskovitz, Assistant Attorney General, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, DiSalle and Craig. Judges Mencer and MacPhail did not participate. Opinion by Judge Crumlish, Jr. Dissenting Opinion by President Judge Bowman. Concurring and Dissenting Opinion by Judge Wilkinson, Jr.

Author: Crumlish

[ 44 Pa. Commw. Page 304]

Presented for our consideration are the merits of preliminary objections filed by the Defendants, the Governor and the Secretary of the Department of Transportation (PennDOT), to a complaint sounding in mandamus and an action for specific performance

[ 44 Pa. Commw. Page 305]

    by the City of Philadelphia, its Mayor, and its Commissioner of Streets.*fn1

The City alleges four separate counts:

I. That the Secretary and Governor, in violation of constitutional and legislative mandates, have failed to expend all monies appropriated for the maintenance, repair and construction of state streets, highways and bridges;

II. That, as a consequence of their inaction, the City has been obliged to expend approximately 1 1/2 million dollars in effectuating repairs on street routes within the City's confines;

III. That Defendants have refused specific requests that they repair the following state routes: (a) Penrose Avenue; (b) Island Avenue, and (c) Interstate Highway 95; and

IV. That Defendants have failed to perform their duty recited in contracts dated February 27, 1975 and January 6, 1976, executed by and between the Commonwealth, acting through the Secretary of Transportation, and the City of Philadelphia, acting through the Street and Water Commissioners, whereby the Commonwealth covenanted, inter alia, to extend Woodhaven Road by new construction and to build a new Passyunk Avenue Bridge.

Plaintiffs seek mandamus to compel Defendants' performance in accordance with asserted constitutional and legislative mandates to expend appropriated monies to the repair and construction of state highways in general and specifically, to repair certain named routes; and that they reimburse the City for monies expended on these ...


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