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MARY M. HUNSICKER AND STANDARD WHEEL & RIM COMPANY v. COMMONWEALTH PENNSYLVANIA (09/08/86)

decided: September 8, 1986.

MARY M. HUNSICKER AND STANDARD WHEEL & RIM COMPANY, PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF TRANSPORTATION AND CITY OF HARRISBURG, RESPONDENTS



Original Jurisdiction in case of Mary M. Hunsicker and Standard Wheel & Rim Company v. Commonwealth of Pennsylvania, Department of Transportation and City of Harrisburg.

COUNSEL

Gary E. French, Keefer, Wood, Allen & Rahal, for petitioners.

Thomas M. Crowley, Deputy Attorney General, with him, Andrew S. Gordon, Chief Deputy Attorney General, Chief, Litigation Section, LeRoy S. Zimmerman, Attorney General, Glenn R. Davis and Judith B. Schimmel, for respondents.

Judge MacPhail, and Senior Judges Rogers and Barbieri, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 100 Pa. Commw. Page 351]

Mary M. Hunsicker (Hunsicker) the owner of a premises at 200 South Cameron Street, Harrisburg, Pennsylvania, and Standard Wheel & Rim Company (Standard), the sole tenant of that premises, hereinafter sometimes collectively identified as Petitioners, have brought suit in our original jurisdiction requesting that we direct the Department of Transportation (DOT) and the City of Harrisburg (City) to initiate condemnation proceedings and stay all construction activities with

[ 100 Pa. Commw. Page 352]

    regard to a 12 foot strip of real estate which provides access to a parking lot located at the rear of the premises until those proceedings have been resolved. DOT has filed preliminary objections which are presently before us for disposition.

From the petition for review we ascertain the following facts. The east property line of the premises is along South Cameron Street. The premises is bordered on the north by Mulberry Street and on the west by Paxton Creek. For some years, Petitioners have used a 12 foot paved strip contiguous to their north property line and running parallel with that property line and Mulberry Street, for access to a parking lot located at the rear of the premises. There is a "curb cut" along South Cameron Street which Standard uses to enter the 12 foot strip. Petitioners have no other means of access to the parking lot.

In November of 1985, DOT began reconstruction work on South Cameron Street and on Mulberry Street, as a result of which the existing curb cut on South Cameron Street will be eliminated, thus preventing Petitioners from using the 12 foot strip and thereby denying access to the parking lot.

It is evident that the 12 foot strip is not situate on the premises identified as 200 Cameron Street but rather is a part of the Mulberry Street right of way. Petitioners aver, however, that the City by its prior action of approving Petitioners' installation of a private sidewalk and the curb cut and its failure to maintain the 12 foot strip, has abandoned it and that Petitioners are now the legal owners thereof. In the alternative, Petitioners claim that DOT's proposed action unlawfully denies them access from the premises to Mulberry Street which, it is alleged, is a part of the City's dedicated public road system.

[ 100 Pa. Commw. Page 353]

In its preliminary objections, DOT raises the question of this Court's jurisdiction contending that Petitioners' rights, if any, must be pursued in the court of common pleas under the provisions of Sections 502(e) and 612 of the Eminent Domain Code (Code), Act of June 22, 1964, Spec. Sess., P.L. 84, as amended, 26 P.S. ยงยง 1-502(e) and 1-612. In addition, DOT has filed a demurrer contending that any action to compel it to take affirmative action such as requested by Petitioners is barred by the defense of sovereign immunity and that Petitioners have ...


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