South Whitehall Tp. v. Com. Dept. of Transp.

• Court: Commonwealth Court of Pennsylvania
• Writing for the Court: DOYLE
• Citation: 82 Pa.Cmwlth. 217,475 A.2d 166
• Decision Date: 03 May 1984
• Parties: SOUTH WHITEHALL TOWNSHIP and South Whitehall Township Authority, Plaintiffs, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Defendant.

Page 166

475 A.2d 166 82 Pa.Cmwlth. 217 SOUTH WHITEHALL TOWNSHIP and South Whitehall Township
Authority, Plaintiffs,
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT OF TRANSPORTATION, Defendant. Commonwealth Court of Pennsylvania. Argued Feb. 3, 1984.
Decided May 3, 1984.

[82 Pa.Cmwlth. 218]

Page 167

Blake C. Marles, Butz, Hudders & Tallman, Allentown, Maria C. Mullane, Catasququa, for plaintiffs.

Bruce M. Mundorf, Spencer A. Manthorpe, Jay C. Waldman, Harrisburg, for defendant.

Before MacPHAIL, DOYLE and BLATT, JJ.

DOYLE, Judge.

This matter is before us on preliminary objections raised by the Commonwealth Department of Transportation (Department) to a complaint brought in our original jurisdiction which seeks a declaratory judgment invalidating regulations promulgated by the Department pursuant to Section 411 of the State Highway Law, Act of June 1, 1945, P.L. 1242, as amended, 36 P.S. § 670-411.

The regulations challenged govern the issuance of a permit for occupancy of state highway rights-of-way by utilities and are found at 67 Pa.Code § 459.3(b) and § 459.7(12). 67 Pa.Code § 459.3(b) provides:

(b) Who may execute applications. If a corporation, authority, political subdivision, or other person in the business of providing utility service owns or operates the facility: the application shall be submitted in the name of and executed

Page 168

by such party. Applications shall not be submitted in the name of contractors of the owner or operator nor in the name of persons being served by the facility.

[82 Pa.Cmwlth. 219] 67 Pa.Code § 459.7(12) provides:

(12) Indemnification. The permittee shall fully indemnify and save harmless and defend--if requested--the Commonwealth, its agents and employes, of and from all liability for damages or injury occurring to any person or persons or property through or in consequence of any act or omission of any contractor, agent, servant, employe or person engaged or employed in, about, or upon the work, by, at the instance, or with the approval or consent of the permittee; from any failure of the permittee or any such person to comply with the permit or the provisions of this chapter; and, for a period of two years after completion of the permitted work, from the failure of the highway in the immediate area of the work performed under the permit where there is no similar failure of the highway beyond the area adjacent to the area of the permitted work.

South Whitehall Township and the South Whitehall Township Authority (Township and Township Authority) complain that the regulations unconscionably require that if developers seeking to expand utility facilities need access to state highway rights-of-way, the Township or Township Authority, not the developer, must obtain occupancy permits from the Department, and indemnify the Department from any harm the developers may cause in the state highway right-of-way. This, the complaint avers, is an unconscionable imposition of vicarious liability contrary to law and public policy. The complaint seeks declaratory relief directing that the Department require permits of the Township and Township Authority only when the municipal entities themselves seek access to state highway...