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SOUTH WHITEHALL TOWNSHIP AND SOUTH WHITEHALL TOWNSHIP AUTHORITY v. COMMONWEALTH PENNSYLVANIA (05/03/84)

decided: May 3, 1984.

SOUTH WHITEHALL TOWNSHIP AND SOUTH WHITEHALL TOWNSHIP AUTHORITY, PLAINTIFFS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, DEFENDANT



Original Jurisdiction in case of South Whitehall Township and South Whitehall Township Authority v. Commonwealth of Pennsylvania, Department of Transportation. Complaint in the Commonwealth Court of Pennsylvania seeking declaratory judgment challenging regulations of the Department of Transportation.

COUNSEL

Maria Mullane, with her, Blake C. Marles, Butz, Hudders & Tallman, for plaintiffs.

Bruce M. Mundorf, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for defendants.

Judges MacPhail, Doyle and Blatt, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 82 Pa. Commw. Page 218]

This matter is before us on preliminary objections raised by the Commonwealth Department of Transportation (Department) to a complaint brought in our original jurisdiction which seeks a declaratory judgment invalidating regulations promulgated by the Department pursuant to Section 411 of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-411.

The regulations challenged govern the issuance of a permit for occupancy of state highway rights-of-way by utilities and are found at 67 Pa. Code § 459.3(b) and § 459.7(12). 67 Pa. Code § 459.3(b) provides:

(b) Who may execute applications. If a corporation, authority, political subdivision, or other person in the business of providing utility service owns or operates the facility: the application shall be submitted in the name of and executed by such party. Applications shall not be submitted in the name of contractors of the owner or operator nor in the name of persons being served by the facility.

[ 82 Pa. Commw. Page 21967]

Pa. Code § 459.7(12) provides:

(12) Indemnification. The permittee shall fully indemnify and save harmless and defend -- if requested -- the Commonwealth, its agents and employes, of and from all liability for damages or injury occurring to any person or persons or property through or in consequence of any act or omission of any contractor, agent, servant, employe or person engaged or employed in, about, or upon the work, by, at the instance, or with the approval or consent of the permittee; from any failure of the permittee or any such person to comply with the permit or the provisions of this chapter; and, for a period of two years after completion of the permitted work, from the failure of the highway in the immediate area of the work performed under the permit where there is no similar failure of the highway beyond the area adjacent to the area of the permitted work.

South Whitehall Township and the South Whitehall Township Authority (Township and Township Authority) complain that the regulations unconscionably require that if developers seeking to expand utility facilities need access to state highway rights-of-way, the Township or Township Authority, not the developer, must obtain occupancy permits from the Department, and indemnify the Department from any harm the developers may cause in the state highway right-of-way. This, the complaint avers, is an unconscionable imposition of vicarious liability contrary to law and public policy. The complaint seeks declaratory relief directing that the Department require permits of the Township and Township ...


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