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ORVILLE D. ANDERSON AND DOROTHA ANDERSON v. DAVID L. SHAFFER (07/25/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 25, 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, P.C., for plaintiffs.

Arthur H. Marateck, Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Edward G. Biester, Jr., Attorney General, for defendants.

Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three.

Author: Per Curiam

[ 44 Pa. Commw. Page 428]

On January 11, 1979, this Court granted Orville D. Anderson and his wife (Petitioners) leave to file an amended petition for review for the purpose of affording them a further opportunity to plead with specificity the agreement which they claim the Department of Transportation (PennDOT) entered into regarding the maintenance of a local service highway which was originally constructed by PennDOT to provide access to Petitioners' property. See Anderson v. Shaffer, 39 Pa. Commonwealth Ct. 636, 396 A.2d 91 (1979). Pursuant thereto, Petitioners filed an amended petition for review in the nature of mandamus and PennDOT has filed preliminary objections including a demurrer. Having carefully reviewed Petitioners' amended pleading, it is now apparent that they are unable to aver the existence of such an agreement. Since Petitioners have failed to state a cause of action sounding in mandamus against PennDOT, its demurrer must be sustained.

Per Curiam Order

And Now, this 25th day of July, 1979, the preliminary objections of the Department of Transportation are hereby sustained and the amended petition for review of Orville D. Anderson and his wife is dismissed as to the Department of Transportation. The matter as it relates to all other defendants shall be transferred to the Court of Common Pleas of Mercer County for further proceedings pursuant to 42 Pa. C.S. ยง 5103(a).

Disposition

Preliminary objections of Department of Transportation sustained. Petition dismissed as to Department. Case transferred to the Court of Common Pleas of Mercer County.

19790725

© 1998 VersusLaw Inc.



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