Original jurisdiction in case of The Concerned Citizens of Greater West Chester, Ann E. Whitcraft and the Borough of West Chester v. The Honorable Thomas D. Larson, Secretary of Transportation of Pennsylvania and Department of Transportation and William A. DeAngelo.
John R. Polito, Jr., with him William S. Huganir, Ross A. Unruh, for petitioners.
John M. Hrubovcak, Assistant Attorney General, Robert W. Cunliffe, Deputy Attorney General, Edward G. Biester, Jr., Attorney General, for respondent.
John E. Good, for party respondent.
Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
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Petitioners, The Concerned Citizens of Greater West Chester, Ann E. Whitcraft, and the Borough of West Chester, have filed a petition for review pursuant
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to the original jurisdiction of this Court under Section 761 of the Judicial Code, 42 Pa. C.S. § 761, challenging the issuance of a highway occupancy permit by the Department of Transportation (Department) to one William DeAngelo, and the subsequent refusal of the Department to grant Petitioners an evidentiary hearing. The Department has filed a Motion for Summary Judgment pursuant to Pa. R.A.P. 1542 and Pa. R.C.P. No. 1035. We will grant the motion.
Factually, DeAngelo applied for and was granted a building permit to erect a Burger King Restaurant in the Borough of West Chester on land he had purchased from the West Chester School District. DeAngelo had also been granted zoning approval for the same installation. He applied to the Department for a highway occupancy permit for two access points to serve his commercial establishment, one such access point being located on Price Street and the other on High Street. The Department granted the application on February 8, 1979. On March 14 and 15, Petitioners wrote to the Department requesting an evidentiary hearing concerning the issuance of the highway occupancy permit which request was denied by the Department on or about March 22, 1979.
In this proceeding Petitioners contend that the Department's refusal to grant a hearing is in violation of their rights under the provisions of Section 504 of the Administrative Agency Law, 2 Pa. C.S. § 504.*fn1 The Department's Motion for Summary Judgment alleges that Petitioners lack standing, that the provisions of the Act do not apply to the issuance of a highway occupancy permit and that sovereign immunity is a bar
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to the action. Under the provisions of Pa. R.C.P. No. 1035, we may enter judgment where there is no dispute as to any material issue of fact and where the petitioner is entitled to judgment as a matter of law. Interestingly, Petitioners do not contend that there is any factual issue to be resolved which ...