Dissenting Opinion by
President Judge Bowman :I dissent and would sustain respondents’ preliminary objections in the nature of a demurrer. I can *311find no valid basis for distinguishing between the duties imposed upon the Department of Transportation with respect to the maintenance and repair of highways by Section 2002 of The Administrative Code of 1929 which the majority characterizes as permissive, and Section 407 of the State Highway Law which the majority characterizes as mandatory. Both statutes provide that the Department “shall” maintain and repair State highways. Thus, I would apply the rationale of our decisions in Borough of White Oak v. Department of Transportation, 25 Pa. Commonwealth Ct. 432, 360 A.2d 825 (1976) and South Whitehall Township v. Department of Transportation, 11 Pa. Commonwealth Ct. 558, 316 A.2d 104 (1974), and dismiss the complaint for want of factual allegations that the Department in performing its duties within its budgetary confines discriminated against the City of Philadelphia or which otherwise would afford a factual basis for a conclusion of a manifest abuse of discretion in the exercise of this duty.