Adler v. City of Philadelphia

• Citation: 156 A.2d 852,397 Pa. 660
• Parties: Louis H. ADLER and Katie Adler, his wife, and Adler the Clothier, Inc., v. CITY OF PHILADELPHIA, and Board of Surveyors of The Department of Streets, Appellants.
• Decision Date: 31 December 1959
• Court: Pennsylvania Supreme Court

156 A.2d 852

397 Pa. 660

Louis H. ADLER and Katie Adler, his wife, and Adler the Clothier, Inc., v. CITY OF PHILADELPHIA, and Board of Surveyors of The

Department of Streets, Appellants.

Supreme Court of Pennsylvania.

December 31, 1959.

David L. German, Jr., Asst. City Solicitor, James L Stern, Deputy City Solicitor, David Berger, City Solicitor Yale B. Bernstein, Asst. City Solicitor, Levy Anderson, First Deputy City Solicitor, Philadelphia, for appellant.

Herbert M. Linsenberg, Meltzer & Schiffrin, Philadelphia, for apppellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R JONES, COHEN, BOK, and McBRIDE, JJ.

CHARLES ALVIN JONES, Chief Justice.

This appeal by the City of Philadelphia under the Act of March 5, 1925 P.L. 23, Section 1, 12 P.S. § 672, ostensibly questions the lower court's jurisdiction of the subject-matter. It seems clear, however, that the appellant misconceives the intended scope of the cited statutory provision. The Act of 1925 permits an appeal from an otherwise unappealable interlocutory order for the review of the lower court's questioned jurisdiction of either the defendant or the subject-matter or both, as the case may be. The facts necessary to an understanding of the question presently raised by the appellant are as follows.

Two of the plaintiffs, Louis H. Adler and wife, are the owners of certain property on North 15th Street, Philadelphia. The remaining plaintiff, Adler The Clothier, Inc., is a tenant of the Adler property and is engaged in the business of selling, tailoring and cleaning men's clothing. To the rear of the Adler building is Appletree Street, which runs from North 16th Street at a right angle eastward toward North 15th Street. It does not extend as far as North 15th Street but ends at the Adler building.

On September 26, 1958, the Mayor of Philadelphia approved an Ordinance of City Council authorizing the vacation of a portion of Appletree Street at the rear of the Adler building. The ordinance also directed the Board of Surveyors of the Department of Streets to strike so much of Appletree Street from the City Plan, the Board of Surveyors being empowered by City Council, acting under statutory authority, ^[*] to confirm or reject all original or revisions of street plans of the City when such plans or revisions have been authorized by ordinance of City Council. The properties abutting that part of Appletree Street to be vacated are owned by the American Stores Company. Following enactment of the Ordinance of September 26, 1958, the Board of Surveyors held a public hearing in respect of the vacation of a portion of Appletree Street but had taken no further action in the premises when this suit was instituted. The plaintiffs have joined the Board of Surveyors with the City of Philadelphia in the instant suit as a party defendant.

The plaintiffs allege in their complaint that the bill, which became the Ordinance of September 26, 1958, was introduced in City Council at the request of the American Stores Company and that agents of that company have stated their intention to cause the Board of Surveyors to vacate the indicated portion of Appletree Street in order to enable the American Stores Company to erect a fence at the end of Appletree Street where the portion to be vacated begins so as to block off access from the street to the American Stores Company's parking lot. The fence would also block off access from the street to the rear of the building tenanted by Adler The Clothier, Inc.

The complaint further alleges that, if the Board of Surveyors confirms the vacation of the indicated portion of Appletree Street, the plaintiffs will be immediately and irreparably injured because the rear door of the building occupied by Adler The Clothier, Inc., which now opens on to Appletree Street, provides the only means of loading and unloading merchandise and equipment that must go in and out of the building, and that, if American Stores Company erects a fence across Appletree Street, the plaintiffs' right of access will be destroyed. Furthermore, the rear door of the Adler property must be maintained as an exit from the building as a condition of a dry cleaning permit granted by the City's Department of Licenses and Inspection. Should the American Stores Company be permitted to block off this exit, Adler The Clothier, Inc. will be unable to operate its dry cleaning plant in the Adler building.

In conclusion, the plaintiffs aver that they are without adequate remedy at law and that no valid public purpose will be served by the contemplated vacation of the indicated portion...