Boslover Ahavas Achim Belzer Ass'n v. Redevelopment Authority of City of Philadelphia

• Decision Date: 03 May 1967
• Citation: 229 A.2d 906,425 Pa. 535
• Parties: BOSLOVER AHAVAS ACHIM BELZER ASSOCIATION, Appellant, v. REDEVELOPMENT AUTHORITY OF the CITY OF PHILADELPHIA.
• Court: Pennsylvania Supreme Court

Page 906

229 A.2d 906

425 Pa. 535

BOSLOVER AHAVAS ACHIM BELZER ASSOCIATION, Appellant, v. REDEVELOPMENT AUTHORITY OF the CITY OF PHILADELPHIA.

Supreme Court of Pennsylvania.

May 3, 1967.

Rehearing Denied June 23, 1967.

Edward L. Snitzer, Mesirov, Gelman, Jaffe & Levin, Philadelphia, for appellant.

Frank B. Murdoch, Philadelphia, Schnader, Harrison, Segal & Lewis, Milton C. Sharp, Philadelphia, Redevelopment Authority of the City of Philadelphia, of Counsel, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

O'BRIEN, Justice.

Boslover Ahavas Achim Belzer Association (Boslover) is a non profit corporation On December 1, 1961, the Redevelopment Authority of the City of Philadelphia (Authority) prepared an Urban Renewal Plan for the Washington Square East Urban Renewal Area, and, on August 22 of 1962, submitted a proposal to City Council, which proposal was approved on May 6, 1963. This proposed plan included reference to the continued occupancy by the appellant of premises at 701 Pine Street, listing this property as one of the several properties which might be exempted from acquisition when agreements were entered into between the owners of such properties and the Authority, providing for rehabilitation to meet specific requirements for such situations.

which has been operating in the City of Philadelphia since 1898. It has an active membership of 1,000, most of whom are over 65 years of age, and was incorporated for the purpose of fostering and promoting American-Jewish culture, the ideas of American democracy, and the improvement and enrichment of the social life of its members. For 45 of the 68 years of its existence, it has owned and maintained a four-story building located at 701 Pine Street, Philadelphia. It has used this building for meetings of its members and has also rented the meeting rooms for various other social, beneficial, charitable and union organizations. This rental was without regard to race, creed, color or national origin, and from this, Boslover received approximately $10,000. per year.

On May 16, 1963, the Authority advised appellant that it had reached a decision in regard to 701 Pine Street, stating, in essence, that it could remain and be rehabilitated for its present use, and that the Authority was currently developing further rehabilitation requirements for the property and would be in further contact with appellant in the near future regarding the execution of a rehabilitation agreement.

On October 5, 1964, the Authority tendered to appellant a rehabilitation agreement which provided, in Paragraph 19, that: 'The OWNER agrees that the uses permitted on subject premises will be restricted to functions sponsored by or on behalf of duly elected members of the Boslover Association. The OWNER further agrees that subject premises will not be used, leased or rented to nonmenbers of the Association or for meetings, gatherings, parties, dances or functions at which non-members will be present.'

Prior to receiving this proposed rehabilitation agreement, the appellant had expended some $28,000. in improvements and repairs to its premises at 701 Pine Street, and states that without this approximate $10,000. which it receives in yearly rental, it would be unable to pay for the operating expenses of the premises, as it had done in the past. Boslover agreed to the rehabilitation agreement presented to it by the Authority, with the exception of the aforementioned Paragraph 19.

On February 14, 1966, Boslover instituted an action in mandamus, seeking to require the authority to enter into the rehabilitation agreement, with the omission of paragraph 19. On March 11, 1966, the Authority filed preliminary objections to the complaint in mandamus in the form of a demurrer, lack of jurisdiction, motion to strike, and a motion for more specific pleading. On May 23, 1966, the court below dismissed appellant's complaint in mandamus. This appeal followed.

Appellant, in its brief, sets out the following Statement of Question Involved: 'When a redevelopment authority, by ordinance of City Council was required to, and did, prepare and tender a rehabilitation contract to a property owner, which agreement, contrary to said ordiance, contained an arbitrary and unlawful clause prohibiting certain classes of persons from using said private property for a permitted and lawful use, and where the property owner, upon execution of a lawful rehabilitation contract, will receive certain benefits, and avoid irreparable harm, including condemnation, will mandamus lie to require the redevelopment authority to execute such As we said in Travis v. Teter, 370 Pa. 326, 330, 87 A.2d 177 (1952): 'Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is Clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy: Borough of Easton v. Lehigh Water Co., 97 Pa. 554, 560; Goodman v. Meade, 162 Pa.Super. 587, 60 A.2d 577.' (Emphasis in original). Amusing, arguendo, that appellant's contention is correct, that a contract was entered into by the letter of May 16, 1963, we agree with the conclusion reached by the court below that: '* * * said letter creates no 'clear legal right' in the plaintiff, nor any 'corresponding duty in the defendant,' as the terms of that 'contract' were not plainly set forth therein' and that mandamus can never be invoked in a doubtful case. Homan v. Mackey, 295 Pa. 82, 86, 155 A. 897 (1929).

lawful rehabilitation contract without its arbitrary and unlawful clause?'

Appellant's position, in essence, is that, in reliance upon certain representations made to it by appellee, it acted to its detriment and is therefore entitled to relief. This may well be, in the proper forum and by a proper cause of action. We hold, only, that the record in this case does not establish a clear, legal right in appellant to have a contract executed by appellee in the form desired by appellant, and mandamus will, therefore, not lie.

Order affirmed.

MUSMANNO, J., files a dissenting opinion.

ROBERTS, J., files a dissenting opinion in which BELL, C.J., joins.

DISSENTING OPINION

MUSMANNO, Justice.

The Majority Opinion correctly states that the Boslover Ahavas Achim Belzer Association receives some $10,000 per year from rental of its premises, which goes toward the operating expenses of the building, but it fails to add that the moneys collected in dues from the members go toward contributions to such worthy charties as Allied Jewish Appeal, Bonds for Israel, Federation of Jewish Charities, Old-Age Jewish Home, and the Jewish National Fund for Israel.

The Boslover Association is purely a charitable enterprise but it has not been treated very charitably by the Redevelopment Authority of Philadelphia, and no crumbs of sympathy fall from the decision of the Majority for the plight of this Association which for nearly half a century has been a shining light of brotherhood in the City of Brotherly Love. The trouble in this case began when the Redevelopment Authority of Philadelphia prepared an Urban Renewal Plan for what is known as the Washington Square East Urban Renewal Area, Unit No. 3, the area including the Boslover property. On August 22, 1962, the Authority submitted its plan to City Council which approved it through enactment of Ordinance No. 2219, which specifically recognized as one of the uses to be permitted: 'The Boslover Beneficial Association at 701 Pine Street.' The Ordinance also stated that the premises were to be exempt from condemnation upon the execution of a Rehabilitation Contract with the authority.

On May 16, 1963, the Authority advised the Boslover organization by letter that 'this property is compatible with the residential character of the neighborhood and * * * can remain and be rehabilitated for its Present use.' (Emphasis supplied). In accordance with this communication and after further conferring with the Authority, the Boslover organization expended $28,000 for improvements.

On October 5, 1964, 17 months after the letter of May 16, 1963, and after the completion of the physical improvements agreed upon, the Authority advised Boslover Clause 19 came as a thunderclap in a clear sky to Boslover and its members. Throughout the course of the negotiations, discussions and legislative action by the City Council of Philadelphia, the entire emphasis was on physical rehabilitation of the building. Not even the shadow of a hint obtruded to suggest that the Authority would have, or could have, supervisory powers over how the Boslover building was to be used, except in the manner it had operated theretofore. When City Council, as I have stated, authorized the Boslover building as one of the uses to be permitted, it obviously meant the uses which had been historically associated with the building.

that the Rehabilitation agreement to be finalized between the parties would include a provision, known as Clause 19, that Boslover must not rent its premises to non-members or for meetings, gatherings, dances or functions at which non-members will be present.

Clause 19 thus arbitrarily offends against the law in the case laid down by City Council. But it goes further. It is capricious in the extreme. For instance, it prohibits members from inviting their wives to functions in the building unless the wives themselves become members. The Authority has no more right to impose such a condition than it would be to demand that men entering the building must be attired in white tie and tails and the women arrayed in low-neck and floor-sweeping gowns.

Clause 19 is so high-handed, arbitrary, and capricious that Boslover would not be permitted to offer a dinner or an award to an astronaut or an ambassador unless he first became a member of the organization. But, apart from the absurdities residing in ...