No. 80-3-657, (No. 327 E.D. Misc. Dkt. 1980), Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 1195 C.D. 1979, dated April 7, 1980.
Ronald M. Katzman, Harrisburg, for appellant.
Robert E. Yetter, Harrisburg, for appellee Twp. of Lower Allen.
John M. Hrubovcak, Asst. Atty. Gen., for appellee Dept. of Transp.
Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. O'Brien, C. J., and Wilkinson, J., did not participate in the consideration or decision of this case. Roberts, J., filed a dissenting opinion.
Before us is an appeal by Hardee's Food Systems, Inc. ("Hardee's") from an order of the Commonwealth Court sustaining the denial by appellee, Pennsylvania Department of Transportation ("PennDOT"), of Hardee's application for Highway Occupancy Permits for the construction of two driveways from its property to a state highway.
Hardee's proposed to develop a tract of land in Lower Allen Township as a fast food restaurant. The lot in question is bounded on the east and west by township roads and on the north by Old Gettysburg Road, a state highway over which PennDOT has exclusive authority and jurisdiction.*fn1 Pursuant to plans submitted by Hardee's, Lower Allen Township officials approved vehicular access to one of the township roads and to Old Gettysburg Road, but restricted ingress and egress on both roads to right turn in and right turn out. Access to the other township road was denied. Satisfied with the township plan, Hardee's applied to PennDOT for the necessary approval in making curb cuts along the state highway.
Upon receipt of Hardee's application, two memoranda prepared by agency employees were circulated within the district agency office having local jurisdiction over the issuance of Highway Occupancy Permits. The memoranda indicated that the permit for Hardee's curb cut requests
should be denied due to "traffic problems." On May 7, 1979, a letter from the district traffic engineer to the district permit supervisor stated that PennDOT could not approve the permit application as requested. The traffic engineer noted that Section 104(c) of PennDOT's Driveway Regulations provides that access driveways should not be located in such a manner as to cause "areas of undue traffic congestion on the highway," and that the 1975 traffic volume map showed that 22,800 vehicles per day were using Old Gettysburg Road. He then concluded: "In light of the high volumes of traffic and the fact that the property has access to two township streets, . . . any and all driveways to this property [should] be from township streets."*fn2 On the same day, in a verbatim copy of the traffic engineer's letter, the district engineer communicated to Hardee's that PennDOT rejected its permit application request. Hardee's was thus denied any and all ingress to and egress from Old Gettysburg Road. Subsequently, Hardee's filed a Petition for Review with the Commonwealth Court seeking to set aside PennDOT's determination. On April 7, 1980, the Commonwealth Court dismissed the petition. Hardee's Food Systems, Inc. v. Department of Transportation of Pennsylvania, 50 Pa. Commw. 331, 413 A.2d 1 (1980). We granted allocatur and now vacate the order of the Commonwealth Court and remand for further proceedings consistent with this Opinion.*fn3
A landowner's right of ingress to and egress from an abutting public highway is an incident of ownership or occupancy of the land, ...