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COMMONWEALTH PENNSYLVANIA v. JOHN D. DIMASCIO (12/24/85)

decided: December 24, 1985.

COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION, PETITIONER
v.
JOHN D. DIMASCIO, BUILDING & ZONING OFFICER OF THE TOWNSHIP OF WILLISTOWN, CHESTER COUNTY, PENNSYLVANIA AND THE TOWNSHIP OF WILLISTOWN, RESPONDENTS



Original jurisdiction in the case of Commonwealth of Pennsylvania, Department of Transportation v. John D. DiMascio, Building and Zoning Officer of the Township of Willistown, Chester County, Pennsylvania, and The Township of Willistown.

COUNSEL

Jerome T. Foerster, Deputy Attorney General, with him, Allen C. Warshaw, Chief, Deputy Attorney General, Chief of Litigation Section, and LeRoy S. Zimmerman, Attorney General, for petitioner.

Robert J. Shenkin, with him, Mary Ann Rossi, MacElree, Harvey, Gallagher, O'Donnell & Featherman, Ltd., for respondents.

Judges Rogers and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 93 Pa. Commw. Page 625]

The Commonwealth of Pennsylvania, Department of Transportation (DOT) has filed a petition for review addressed to our Court's original jurisdiction to which the respondents, the Township of Willistown (Township) and its Building and Zoning Officer John J. DiMascio, have filed an answer and counterclaim. Asserting that the facts are essentially undisputed, the respondents have also filed a Motion for Judgment on the Pleadings,*fn1 contending that they are entitled to prevail as a matter of law. DOT agrees that there is no material issue of fact, and likewise argues, of course, that a consideration of the pleadings requires that it should prevail.

The pleadings here indicate that DOT undertook the construction of a building on land it owned within the Township of Willistown, a township of the second class not having a home rule charter. The "Domar" building which DOT has erected is a teepee-shaped structure approximately sixty-five feet in height, having a diameter of about one hundred feet, and is used

[ 93 Pa. Commw. Page 626]

    to store road salt, which must be kept in a dry environment lest it dissolve and leach into the earth, causing pollution. During construction, the respondents served upon DOT and its contractor a Cease and Desist order intended to stop work on the structure until a valid Building/Zoning permit was issued pursuant to the Township's zoning ordinance. The petition for review filed here by DOT sought to enjoin the respondents from interfering with its construction or utilization of the building.

The issue presented for our consideration, therefore, is whether or not, as a matter of law, DOT is subject to regulation pursuant to the zoning ordinance of a township of the second class which is not a home rule community.

The respondents contend that the Supreme Court's decision in Commonwealth v. Ogontz Area Neighbor's Association, 505 Pa. 614, 483 A.2d 448 (1984) is controlling, requiring that we resolve the priorities of the conflicting governmental instrumentalities by ascertaining the legislative intent. They argue that we must, therefore, apply Section 1921(c)(6) of the Statutory Construction Act, 1 Pa. C.S. ยง 1921(c)(6), which provides that such intent is to be determined by considering the consequences of a particular interpretation, and they assert that such consideration here compels the conclusion that DOT is subject to the Township's zoning ordinance.

It is true that Ogontz relied upon the application of Section 1921(c)(6) of the Statutory Construction Act. It did so because the applicable statutes provided no indication as to the legislative intent regarding the conflicting priorities, but no such ambiguity exists in the instant case. This is ...


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