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PETER CARLINO AND ELIZABETH CARLINO v. WHITPAIN INVESTORS (12/23/82)

decided: December 23, 1982.

PETER CARLINO AND ELIZABETH CARLINO, HIS WIFE, APPELLANTS,
v.
WHITPAIN INVESTORS, WHITPAIN TOWNSHIP, WHITPAIN TOWNSHIP BOARD OF SUPERVISORS AND PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, APPELLEES



No. 80-3-667, Appeal from the Order of the Commonwealth Court of Pennsylvania at No. 41 T.D. 1979 Dated June 11, 1980, 52 Pa. Commw. Ct. 145, O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Larsen, J., files a dissenting opinion in which McDermott, J., joins.

Author: Flaherty

[ 499 Pa. Page 500]

OPINION OF THE COURT

This equity action was commenced in the Court of Common Pleas of Montgomery County by the appellants, Peter Carlino and Elizabeth Carlino, seeking a preliminary injunction against the appellees, Whitpain Investors (hereinafter Developer), Whitpain Township (hereinafter Township), and Pennsylvania Department of Transportation (hereinafter PennDOT). Upon motion of PennDOT, the action was transferred to Commonwealth Court, and, sustaining appellees' preliminary objections, Commonwealth Court dismissed the complaint.*fn1 The instant appeal ensued.

Since review is sought of the sustainment of preliminary objections in the nature of demurrers, the well pleaded factual allegations set forth in the complaint are to be regarded as true for purposes of review. Papieves v. Kelly, 437 Pa. 373, 263 A.2d 118 (1970). The facts as alleged by appellants' complaint establish the following. Developer is

[ 499 Pa. Page 501]

    constructing an apartment complex in the Township on a 47 acre tract of land situated between three roads, one of which, Stenton Avenue, is a state highway. Appellants' residence lies directly across Stenton Avenue from the construction site. Developer's predecessor in title sought to have the 47 acre tract rezoned from an R-1 (single-family) classification to an R-3 (multi-family) classification to permit construction of residential rental units. At the hearing on rezoning of the tract, the then owner stipulated that a 300 foot buffer would be provided from the right-of-way line of Stenton Avenue, and further specified that no access road from the apartment complex to Stenton Avenue would be built. In 1973, the requested zoning change was adopted by the Township. In 1979, however, construction of an access road from the apartment complex to Stenton Avenue commenced, and appellants became aware that the land development plan finally approved by the Township had, at the insistence of the Township, included a provision for access to Stenton Avenue, and that in 1978, a driveway permit authorizing construction of the access road to Stenton Avenue had been issued by PennDOT.

Alleging that the driveway permit issued by PennDOT to Developer was granted without adequate preliminary studies, and asserting the existence of deficiencies in the access road that endanger the public health, safety, and welfare, appellants seek an injunction requiring revocation of the permit. Established principles governing standing to raise issues in the public interest, however, bar appellants' assertion of these claims. In Wm. Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 192, 346 A.2d 269, 280-281 (1975), our cases dealing with standing were summarized as follows:

The core concept, of course, is that a person who is not adversely affected in any way by the matter he seeks to challenge is not "aggrieved" thereby and has no standing to obtain a judicial resolution of his challenge. In particular, it is not sufficient for the person claiming to be

[ 499 Pa. Page 502]

"aggrieved" to assert the common interest of all citizens in procuring obedience to the law.

(footnotes omitted). This rule respecting standing is not intended to bar from relief persons injured by breach of a public duty merely because many others have incurred similar injuries as a consequence of that breach; rather, the "concern is to distinguish those who have suffered some individual injury from those asserting only the common right of the entire public that the law be obeyed." Id., 464 Pa. at 203, 346 A.2d at 287 (emphasis added). Since the instant complaint, although containing a broad assertion that deficiencies in the access road will "have a unique impact" on appellants, fails to specify any individual injury attributable to deficiencies in the roadway itself and in preparatory studies, appellants must be regarded as lacking standing to raise such objections to PennDOT's action.

Appellants further challenge PennDOT's grant of the driveway permit on grounds that presence of the access road immediately adjacent to their property will cause inconvenience and annoyance, thereby impairing the value of their property in a manner not compensable in damages. We regard this assertion as inadequate to state a cause of action. In Wolf v. Department of Highways, 422 Pa. 34, 220 A.2d 868 (1966), an eminent domain case, an owner of business property abutting a state highway alleged that highway improvements had diminished the property's value by necessitating a circuitous route of ingress, thereby reducing the number of business customers willing to enter the premises. Denying the owner's claim for damages insofar as property value diminution occasioned by such a diversion of traffic, this Court held that owners of properties abutting state roads have no cognizable legal interest in preserving a ...


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