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CITY EASTON v. ANDY'S EXCAVATING (05/22/86)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 22, 1986.

CITY OF EASTON, APPELLANT
v.
ANDY'S EXCAVATING, INC., APPELLEE

Appeal from the Order of the Court of Common Pleas of Northampton County, in case of Andy's Excavating, Inc. v. City of Easton and Township of Williams, No. 1982-C-6203.

COUNSEL

Herbert V. Giobbi, Ziev, Giobbi & McFadden, for appellant.

Dennis A. DeEsch, for appellee.

Thomas W. Houser, for intervenor, Township of Williams.

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

Author: Barry

[ 97 Pa. Commw. Page 413]

The City of Easton appeals from an order of the Court of Common Pleas of Northampton County which declared unconstitutional a City ordinance which restricted commercial truck traffic on certain of the City's streets.

One of the streets which was subject to the restriction was Line Street which, for portions of it, serves as the boundary line between the City and the Township of Williams. The restrictive ordinance excepts from its application commercial trucks having a destination within City limits.

Andy's Excavating, Inc., the plaintiff, is a business located on the Township's side of Line Street. It filed an action for declaratory judgment, alleging that the ordinance in question was unconstitutional. Because it is not located within the City, commercial vehicles servicing it could not use Line Street. The only alternate route involved a steep hill with a sharp bend. The plaintiff's owner testified that this route was not usable because the low bed trailers of the trucks servicing the plaintiff could not negotiate the curve on the hill. At times when the drivers attempted to use this route, the trucks would get stuck, requiring cranes to free those trucks. Based on the foregoing, the trial court declared the ordinance unconstitutional. This appeal followed.

The City makes two allegations of error. It first argues that the trial court's finding of fact concerning

[ 97 Pa. Commw. Page 414]

    the unsuitability of the only alternative route was not supported by substantial evidence. The trial court, however, is the sole judge of credibility and it accepted as true the testimony of the plaintiff's owner. Such testimony, once believed, certainly supports the trial court's factual finding on this point.

The City next argues that the trial court erred in ruling that the ordinance is unconstitutional. This same argument was presented to the trial court and was ably disposed of in the opinion of Judge Richard D. Grifo. We affirm on the basis of Judge Grifo's discussion of issue number four contained therein. Andy's Excavating Inc. v. City of Easton, 38 Pa. D. & C. 3d 498 (1985).

Order

Now, May 22, 1986, the order of the Court of Common Pleas of Northampton County, dated March 13, 1985, at No. 1982-C-6203, is affirmed.

Disposition

Affirmed.

19860522

© 1998 VersusLaw Inc.



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