Original jurisdiction in case of Township of Upper Moreland and Brian Mook v. Pennsylvania Department of Transportation and James B. Wilson, Secretary of the Department of Transportation.
Raymond Jenkins, with him Jenkins, Tarquini & Jenkins, for petitioners.
Stuart M. Bliwas, Assistant Attorney General, for respondents.
Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge Blatt. Judge MacPhail dissents.
The petitioners, Upper Moreland Township (Township) and Township Secretary Brian Mook (taxpayer) on his own behalf as a taxpayer, are seeking to enjoin the respondents, the Pennsylvania Department of Transportation (DOT) and its Secretary from using public funds for the construction of a left-hand standby turning lane on Easton Road in Upper Moreland Township, Montgomery County. The petitioners contend that the proposed construction is for the sole benefit of an adjacent landowner, and is, therefore, an unlawful abuse of discretion by DOT. They also charge that the construction is contrary to Article VIII of the Constitution of this Commonwealth, Pa. Const. Art. VIII, § 11, which provides that revenue derived from taxes on gasoline sales, motor vehicle licensing, and other specified forms of taxes on transportation, be used for the public benefit. The case comes to us through our original jurisdiction over proceedings against the Commonwealth and its officers pursuant to Section 761(a)(1) of the Judicial Code, 42 Pa. C.S. § 761(a)(1),*fn1 and the respondents have raised preliminary objections asserting a lack of capacity to sue, a demurrer, and laches.
In weighing the preliminary objection alleging a lack of standing, we must separately consider the standing of the township and the standing of the taxpayer.
The Township, a first class township under The First Class Township Code (Code),*fn2 contends that it
has standing to prevent unlawful government spending as a fiduciary of the public interest. As our Supreme Court stated, however, in a decision involving a second class township:
[I]t is well settled that townships, political subdivisions of the Commonwealth, possess only such powers as have been granted to them by the legislature, either in express terms or which arise by necessary and fair implication or are incident to powers expressly granted or are essential to the declared objects and purposes of the townships: St. Joseph Lead Co. v. Potter Township, 398 Pa. 361, 364, 157 A.2d 638 . . .
Commonwealth v. Ashenfelder, 413 Pa. 517, 521, 198 A.2d 514, 515 (1964). This principle applies with equal force to first class townships,*fn3 counties,*fn4 boroughs,*fn5 and cities.*fn6 In addition, although the Code permits a first class township to "sue and be sued" § 1501, 53 P.S. § 56501, it contains no specific mandate for a township to sue as a representative of its citizens. Nor can such a mandate be implied in this case as being incidental to powers expressly granted by the Code, or as essential to the purpose of the Code because, even if the Township is denied standing, the allegedly unlawful expenditure can still be challenged by ...