Original Jurisdiction in the case of Claude De Botton and Richard I. Rubin & Co., t/a Marple Associates v. Commonwealth of Pennsylvania, Department of Transportation and Marple Township.
Darryl J. May, with him, Michael Sklaroff and Joanne Phillips, Ballard, Spahr, Andrews & Ingersoll, for petitioner.
Michael L. Harvey, Deputy Attorney General with him, John G. Knorr, III, Chief Deputy Attorney General and LeRoy S. Zimmerman, Attorney General, for respondent, Department of Transportation, and Thomas M. Kettredge, with him, Rebecca J. Slaughter, Morgan, Lewis & Bockius, for respondent, Marple Township.
Judge Smith, and Senior Judges Kalish and Narick, sitting as a panel of three. Opinion by Judge Smith. Judge MacPhail did not participate in the decision in this case.
[ 123 Pa. Commw. Page 66]
Marple Associates (Petitioner), a business partnership maintained by Claude De Botton (De Botton) and Richard I. Rubin & Co., filed a petition for review addressed to this Court's original jurisdiction,*fn1 naming the
[ 123 Pa. Commw. Page 67]
Commonwealth of Pennsylvania, Department of Transportation (DOT), and Marple Township (Township), Delaware County, as respondents. Petitioner seeks equitable relief by order declaring illegal an agreement between DOT and the Township (Agreement); and prohibiting DOT and the Township from entering into any further agreements to condemn a portion of Petitioner's land. In response, DOT filed preliminary objections asserting that Petitioner has failed to state a claim upon which relief may be granted and that this Court lacks jurisdiction. DOT also seeks dismissal on the grounds of sovereign immunity and lack of adjudicatory ripeness.
Issues presented for review are whether Petitioner has failed to state a claim to the extent it alleges that DOT does not have authority to enter into an agreement with the Township to reimburse the Township for expenses incurred in acquiring a tract of land in exchange for a right of entry upon the Township's parkland; whether this Court lacks jurisdiction to entertain Petitioner's claims that the condemnation of its land will constitute an excessive taking and will be made in bad faith and not for a public purpose; whether Petitioner's claims against DOT are barred by sovereign immunity; and whether this matter is ripe for adjudication.*fn2
[ 123 Pa. Commw. Page 68]
DOT condemned 19.1 acres of the Township's Lawrence Park (Park) to construct Legislative Route 1010, known as the Blue Route (Blue Route). The Township subsequently requested DOT to provide replacement parkland for the condemned portion of the Park pursuant to DOT's duty to minimize harm to the Park under federal and state law.*fn3 DOT thereafter entered into the Agreement with the Township on February 2, 1988. DOT agreed to reimburse the Township for all expenses incurred in the Township's condemnation of 26.265 acres of Petitioner's land, located adjacent to the Park. Petitioner's land is to be used as replacement parkland in exchange for the Township's grant to DOT of a right of entry upon the condemned 19.1 acres of the Park.
DOT initially contends that Petitioner's averments contained in Counts I-IV of the petition fail to state a claim upon which relief may be granted since DOT has authority to enter into an agreement with the Township to reimburse the Township for expenses incurred in acquiring replacement parkland in exchange for a right of entry upon the condemned portion of the Park. Preliminary objections in the nature of a demurrer admit as true all well-pleaded facts, excluding conclusions of law, unwarranted factual inferences, argumentative allegations and opinions. Nor are such preliminary objections to be granted unless it is clear from the face of the pleadings that the law will not permit the relief sought. Any doubts must be resolved against ...