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E-Z PARKS v. THOMAS D. LARSON (09/12/85)

decided: September 12, 1985.

E-Z PARKS, INC., PETITIONER
v.
THOMAS D. LARSON, SECRETARY OF TRANSPORTATION, AND COMMONWEALTH OF PENNSYLVANIA AND PHILADELPHIA PARKING AUTHORITY, RESPONDENTS



Original Jurisdiction in case of E-Z Parks, Inc. v. Thomas Larson, Secretary of Transportation; Commonwealth of Pennsylvania, Department of Transportation, and Philadelphia Parking Authority.

COUNSEL

Steven M. Coren, with him, Joseph M. Donley and Christine Councill, Fritton, Kittredge, Kaufman & Donley, for petitioner.

William J. Cressler, Assistant Counsel, with him, Spencer A. Manthorpe, Chief Counsel, and Jay C. Waldman, General Counsel, for respondents Larson and Commonwealth of Pennsylvania.

S. David Fineman, with him, Linda L. Shafer, Hunt & Fineman, P.C., of Counsel: James Crumlish, III, for respondent, Philadelphia Parking Authority.

Judges Rogers and Doyle, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Doyle. President Judge Crumlish, Jr., did not participate in the decision in this case.

Author: Doyle

[ 91 Pa. Commw. Page 602]

Before us are the preliminary objections of Respondents, Thomas D. Larson and the Department of Transportation (Department), and the Philadelphia Parking Authority (Authority) to a petition for review filed under our original jurisdiction by E-Z Parks, Inc. (Petitioner), requesting injunctive relief.

This case involves property currently in use as a parking lot and located on Vine Street, between 15th and 16th Streets, in the City of Philadelphia. On August 31, 1972, the Department condemned an easement to the property for the purpose of constructing a limited access highway on Vine Street. On May 27, 1983, the Department leased the property to the Petitioner for a five year term, subject to termination by the Department in the event that the property was required "for construction of the highway or related transportation purposes." Although the original design for

[ 91 Pa. Commw. Page 603]

    the construction of the highway intended that a portion of the property be used as part of the actual highway interchange, this design was never implemented. Instead, a new "scaled-down" design was proposed in which the subject property was to be used as a multi-level parking facility adjacent to the highway.

In accordance with this design, the Department entered into a joint use agreement with the Authority on January 17, 1984, under which the Authority would lease the property for 99 years and construct a parking garage on the site. Under the terms of the agreement, the Department agreed to acquire fee simple title to the property and filed a declaration of taking for that purpose on July 23, 1984.*fn1 On November 21, 1984, the Department notified Petitioner that Petitioner's lease was terminated immediately "for the construction of the Vine Street Expressway."

Petitioner thereafter filed the present petition for review against the Department and the Authority, seeking to prevent termination of Petitioner's lease, void the joint-use agreement between the Department and the Authority, and require the Department to convey the property to the Petitioner. Petitioner's petition for review contains four separate causes of action, the first based on Section 2003(e) of the Administrative Code of 1929 (Code),*fn2 the second and third based on wrongful termination of the lease, and the fourth based on tortious interference with its lease by the Authority.*fn3

[ 91 Pa. Commw. Page 604]

Section 2003(e) of the Code

Both the Department and the Authority have filed preliminary objections in the nature of a demurrer*fn4 alleging that Petitioner has failed to state a cause of action under Section 2003(e) of the Code. That Section, which specifically authorizes the ...


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