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TOWNSHIP NORTH FAYETTE v. COMMONWEALTH PENNSYLVANIA (10/26/81)

decided: October 26, 1981.

TOWNSHIP OF NORTH FAYETTE, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, RICHARD L. THORNBURGH, GOVERNOR ET AL., RESPONDENTS



Original jurisdiction in the case of Township of North Fayette v. Commonwealth of Pennsylvania, Richard L. Thornburgh, Governor; Pennsylvania Department of Transportation, Thomas D. Larson, Secretary; and Roger Carrier, District Engineer.

COUNSEL

Larry P. Gaitens, P.C., for petitioner.

Andrew H. Cline, Assistant Counsel, with him Robert W. Cunliffe, Deputy to Chief Counsel, Ward T. Williams, Chief Counsel, and Jay C. Waldman, General Counsel, for respondents.

President Judge Crumlish and Judges Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 62 Pa. Commw. Page 243]

The Township of North Fayette (Township) has filed a petition for review in our original jurisdiction seeking to enjoin the Respondents*fn1 preliminarily and permanently from rerouting vehicular traffic over a designated route (L.R. 257) while repairs are being made to bridges on U.S. Routes 22 and 30 in the Township. On March 12, 1981, this Court denied preliminary relief. An appeal from that order to our Supreme Court has been discontinued.

Before us now is Respondents' preliminary objection alleging that Township lacks standing to bring this suit.*fn2 Respondents' attack upon the Township's standing is two-fold: 1) the Township has no standing to maintain the action on behalf of its residents or taxpayers and 2) the Township has no standing to maintain the action on its own behalf. As we understand Township's argument and brief, it does not contend that it brought this action on behalf of its residents and taxpayers, notwithstanding the fact that several of the allegations in the petition for review might indicate to the contrary. Accordingly, we will narrow the issue to a determination of whether the Township has standing to bring this action in its own right, i.e., in furtherance of its governmental functions.

The petition for review alleges in substance that if the Respondents implement their planned detour during

[ 62 Pa. Commw. Page 244]

    the reconstruction project, serious safety hazards will arise by reason of the fact that the alternate route has insufficient capacity to handle the anticipated volume of traffic, inadequate traffic control devices, and several heavily traveled intersecting township roads. The Township avers that it is charged with the statutory responsibility of defending and protecting the safety of its inhabitants. Indeed, Section 702 of The Second Class Township Code (Code), Act of May 1, 1933, P.L. 103, as amended, 53 P.S. § 65747 does provide, inter alia, that the Township has the power "[t]o take all needful means for securing the safety of persons or property within the township." In the instant proceeding, Township contends that it has neither the human nor the financial resources to fulfill that governmental function with respect to the proposed detour.

Respondents counter that Section 423 of the State Highway Law (Act), Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-423, imposes upon the Department of Transportation (DOT) the duty to designate and layout detours and to maintain detours in a safe and passable condition. Furthermore, Respondents contend that this duty devolves upon DOT, an agency of the sovereign, i.e. the Commonwealth, and that the Township as a political subdivision of the sovereign, has no standing to challenge the actions of its creator. Philadelphia v. Fox, 64 Pa. 169 (1870).

In Strasburg Associates v. Newlin Township, 52 Pa. Commonwealth Ct. 514, 415 A.2d 1014 (1980) the Environmental Hearing Board (EHB) had held that Newlin Township had standing to challenge the action of the Department of Environmental Resources (DER) with respect to a sanitary land-fill permit. EHB ruled that the DER's action could prospectively affect the ...


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