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DELAWARE RIVER PORT AUTHORITY v. RICHARD L. THORNBURGH (06/25/84)

decided: June 25, 1984.

THE DELAWARE RIVER PORT AUTHORITY, PETITIONER
v.
RICHARD L. THORNBURGH, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS



Original jurisdiction in the case of The Delaware River Port Authority v. Richard L. Thornburgh, Governor of Commonwealth of Pennsylvania and The Commonwealth of Pennsylvania, Department of Transportation and Thomas Larson, Secretary of Transportation.

COUNSEL

D. Donald Jamieson, with him, Jeffrey Cooper, Mesirov, Gelman, Jaffe, Cramer & Jamieson, for petitioner.

Michael J. McCaney, Jr., Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for respondents.

President Judge Crumlish, Jr. and Judges Rogers, Williams, Jr., Craig, MacPhail, Doyle and Barry. Opinion by Judge Doyle. Dissenting Opinion by Judge Rogers.

Author: Doyle

[ 83 Pa. Commw. Page 345]

This matter is before us for consideration of preliminary objections to an action brought in our original jurisdiction by the Delaware River Port Authority seeking an injunction to compel the Commonwealth and the Department of Transportation to construct a proposed limited access highway, commonly referred to as the Casimir Pulaski Expressway (Pulaski Expressway), between the Betsy Ross Bridge and the Roosevelt Boulevard in the City of Philadelphia.

Background

The Delaware River Port Authority (Port Authority) was created in 1931 pursuant to an Interstate Compact between the Commonwealth of Pennsylvania and the State of New Jersey. The Compact was first approved by the Commonwealth by the Act of June 12, 1931, P.L. 575, as amended, 36 P.S. 3503, and by the State of New Jersey by 1929 N.J. Laws C. 271, N.J. Stat. Ann. 32:3-1 through 32:3-18, and consented to by the U.S. Congress on June 14, 1932, 47 Stat. 308. The Compact was amended in Pennsylvania by the Act of July 18, 1951, P.L. 1010, and the Act of August 10, 1951, P.L. 1206, and consented to by Congress on July 17, 1952, 66 Stat. 738. Most recently, the Compact was amended in Pennsylvania by the Act of June 11, 1963, P.L. 102, which was consented to by Congress on June 13, 1964, 78 Stat. 215.

[ 83 Pa. Commw. Page 346]

The Port Authority owns, operates and maintains four toll bridge crossings over the Delaware River between Pennsylvania and New Jersey: The Walt Whitman Bridge, the Benjamin Franklin Bridge, the Commodore Barry Bridge, and the Betsy Ross Bridge. The Betsy Ross Bridge connects Philadelphia with Pennsauken, New Jersey. The Bridge is linked in Philadelphia to Interstate Route #95 and to local streets in the Bridesburg section of the City. The Port Authority contends that construction of the Bridge was part of a broader highway plan which included construction of the Pulaski Expressway. The Port Authority asserts that the viability of the Betsy Ross Bridge depends on an east-west highway connection to the Roosevelt Boulevard and avers that it undertook construction of the Bridge only upon assurances by the Commonwealth and the Department of Transportation that the Pulaski Expressway would be built. The Port Authority alleges that the abandonment of construction plans by the Commonwealth constitutes a breach of those assurances and further amounts to a breach of the terms of the Interstate Compact under which the Port Authority operates.

The Port Authority initiated this suit by petition for review seeking equitable relief in the nature of mandamus against Governor Thornburgh, the Department of Transportation (Department), the Secretary of Transportation, and the General Assembly. The petition sought to compel the respondents to take all steps necessary and proper within their respective powers to effect the construction of the Pulaski Expressway. The defendants filed preliminary objections objecting, inter alia, to our jurisdiction and alleging exclusive jurisdiction in the Board of Claims. This Court sustained those objections which contested our jurisdiction and dismissed the suit, reasoning that, as the claim sounded in contract, jurisdiction

[ 83 Pa. Commw. Page 347]

    lay properly and exclusively with the Board of Claims. Delaware River Port Authority v. Thornburgh, 56 Pa. Commonwealth Ct. 459, 425 A.2d 479 (1981). On appeal, the Supreme Court reversed, holding that we had misperceived the scope of the Port Authority's petition for review and the Supreme Court remanded to this Court for consideration on the merits. Delaware River Port Authority v. Thornburgh, 500 Pa. 629, 459 A.2d 717 (1983). Our dismissal of the petition was upheld as to the respondent General Assembly on grounds of constitutional separation of powers. Id.

On remand, the remaining respondents moved to reinstate their preliminary objections and file supplemental briefs. On May 27, 1983, President Judge Crumlish granted the Respondents' motion and directed that the outstanding preliminary ...


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