Gardner v. Allegheny County

• Court: United States State Supreme Court of Pennsylvania
• Citation: 382 Pa. 88,114 A.2d 491
• Parties: K. C. GARDNER and Myrta E. Gardner v. COUNTY OF ALLEGHENY, Trans World Airlines, Inc., et al., Appellants. Helen May SPRINGER v. COUNTY OF ALLEGHENY, Trans World Airlines, Inc., et al., Appellants. Elizabeth B. M. GARDNER and Kirtland C. Gardner, Jr. v. COUNTY OF ALLEGHENY, Trans World Airlines, Inc., et al., Appellants. Nacy Springer PATTON v. COUNTY OF ALLEGHENY, Trans World Airlines, Inc., et al., Appellants. Thomas N. GRIGGS v. COUNTY OF ALLEGHENY, Trans World Airlines, Inc., et al., Appellants. Appeal of TRANS WORLD AIRLINES, Inc. Appeal of EASTERN AIR LINES, Inc. Appeal of NORTHWEST AIRLINES, Inc. Appeal of CAPITAL AIRLINES. Appeal of the ALLEGHENY AIRLINE. Appeal of LAKE CENTRAL AIR LINES. Appeal of COUNTY OF ALLEGHENY.
• Decision Date: 23 May 1955

Page 491

114 A.2d 491 382 Pa. 88 K. C. GARDNER and Myrta E. Gardner
v.
COUNTY OF ALLEGHENY, Trans World Airlines, Inc., et al., Appellants.
Helen May SPRINGER
v.
COUNTY OF ALLEGHENY, Trans World Airlines, Inc., et al., Appellants.
Elizabeth B. M. GARDNER and Kirtland C. Gardner, Jr.
v.
COUNTY OF ALLEGHENY, Trans World Airlines, Inc., et al., Appellants.
Nacy Springer PATTON
v.
COUNTY OF ALLEGHENY, Trans World Airlines, Inc., et al., Appellants.
Thomas N. GRIGGS
v.
COUNTY OF ALLEGHENY, Trans World Airlines, Inc., et al., Appellants.
Appeal of TRANS WORLD AIRLINES, Inc.
Appeal of EASTERN AIR LINES, Inc.
Appeal of NORTHWEST AIRLINES, Inc.
Appeal of CAPITAL AIRLINES.
Appeal of the ALLEGHENY AIRLINE.
Appeal of LAKE CENTRAL AIR LINES.
Appeal of COUNTY OF ALLEGHENY. Supreme Court of Pennsylvania. May 23, 1955.

[382 Pa. 90]

Page 493

J. Henry O'Neill, Stephen E. Nash, J. Garfield Houston, Blaxter, O'Neill & Houston, Nathaniel K. Beck, Maurice Louik, Pittsburgh, for appellants.

W. A. Blair, David B. Fawcett, William S. Marshall, Griggs, Moreland, Blair & Douglass, Pittsburgh, for appellees.

John H. Wanner, Associate General Counsel, James L. Highsaw, Jr., Chief, Litigation and Research Division, Washington, D. C., for amici curiae on behalf of Civil Aeronautics Board.

H. Grady Gatlin, Jr., Washington, D. C., [382 Pa. 91] Gerald F. White, Raleigh, N. C., Chief Enforcement and Litigation Division, Civil Aeronautics Administration, for amici curiae on behalf of Administrator of Civil Aeronautics, Washington, D. C.

BELL, Justice.

Plaintiffs are the owners of certain tracts of land in Moon Township, Allegheny County, Pennsylvania. Their properties were bought and their homes built before the ground was acquired for an airport. These five tracts are located about 1,000 feet or more distant from the Northeast end of the Northeast-Southwest runway, one of three runways of the greater Pittsburgh Airport. The airport, which was erected and is owned and maintained by the County of Allegheny, has been used since June, 1952 as a commercial air terminal by virtue of leases of its facilities to the air lines which are co-defendants.

The property owners aver in their bill of complaint that in landing upon and taking off from the airport, defendants' planes descend or ascend along what is known as the glide angle. Starting at the Northeast end of the paved portion of the Northeast-Southwest runway, which points toward plaintiffs' properties, this glide angle or path of glide slopes upward at the rate of one foot vertically for each forty feet horizontally for a distance of five miles which is the limit of the approach or control zone. The plaintiffs further aver that the glide angle, as it crosses their premises, is below the floor of the navigable air space and about fifteen to thirty feet above the chimneys of their respective houses. They complain that in landing at and taking off from the airport the defendant airlines have committed repeated trespasses and will continue to trespass over their properties. The (minimum) floor of [382 Pa. 92] the navigable air space ¹ is five hundred feet above the

Page 494

ground in rural areas and one thousand feet in congested areas like this one and is prescribed by the Civil Aeronautics Board and is concurred in by the Pennsylvania Aeronautics Commission.

The complaints further charge that the repeated trespasses by the County and the airline defendants have completely destroyed the value of the plaintiffs' lands and that the County has not acquired the plaintiffs' properties by condemnation, although it has the power to do so.

To summarize: Plaintiffs allege (1) continuing trespasses which endanger their homes and their safety, and (2) a 'taking' of their respective properties.

Plaintiffs, in their prayers for relief, ask alternatively for (1) an injunction restraining all commercial airliners from flying over plaintiffs' properties below the floor of the navigable airspace in landing at or taking off from Greater Pittsburgh Airport, or (2) payment to plaintiffs by defendants of the present fair market value of their respective properties as if there were no air operations at the airport.

[382 Pa. 93] The County and the airlines separately filed preliminary objections to the complaint contending that the Court of Common Pleas of Allegheny County sitting in Equity lacked jurisdiction because of the absence of indispensable parties, and the County also contended that the Court lacked jurisdiction over the cause of action.

Defendants, upon the overruling of their preliminary objections, took an appeal under the Act of March 5, 1925, P.L. 23, 12 P.S. § 672. The five separate actions have been consolidated and were heard and will be considered as one appeal. We have had the benefit of two able oral arguments.

Defendant airlines aver that their flights are made in accordance with the regulations of the Civil Aeronautics Board which has exclusive control over the operations, take-offs and landings of commercial airplanes and while they relied on this in their first oral argument they later stated that they do not press this objection 'on this appeal for the reason that it does not raise a jurisdictional question.' On the other hand, Allegheny County, one of the defendants, undoubtedly contended abinitio and still contends (a) that the Court had no jurisdiction to grant equitable relief (i.e., no jurisdiction over the cause of action, which they argued was a claim for a 'taking'), and (b) that certain Federal regulatory agencies and officers, viz., The Civil Aeronautics Board and The Civil Aeronautics Administrator, are indispensable parties to this action and should be joined. The governmental authorities who intervened as amici curiae deny that they are either necessary or indispensable parties, even though in many respects they minutely control and regulate the take-off approach and landing of planes at this airport.

[382 Pa. 94] Defendants by their 'preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleader's conclusions or averments of law': Narehood v. Pearson, 374 Pa. 299, 302, 96 A.2d 895, 896. Moreover, when the sustaining of defendants' preliminary objections will result in a denial of plaintiffs' claim, or a dismissal of plaintiffs' suit, preliminary objections should be sustained only in cases which are clear and free from doubt: London v. Kingsley, 368 Pa. 109, 81 A.2d 870; Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776.

Page 495

Although the cases at bar will ultimately require the determination of very important complex issues and conflicting interests, the sole question before us at this time is the limited question of jurisdiction, namely: (a) Has the Court jurisdiction of the defendants and were all necessary and indispensable parties joined; and (b) Did plaintiffs state a cause of action over which a Court of Equity has jurisdiction? Welser v. Ealer, 317 Pa. 182, 176 A. 429; Com. ex rel. Shumaker v. New York & Pennsylvania Co., Inc., 367 Pa. 40, 79 A.2d 439; Upholsterers' International Union v. United Furniture Workers, 356 Pa. 469, 52 A.2d 217; Witney v. Lebanon City, 369 Pa. 308, 85 A.2d 106; Zerbe Township School District v. Thomas, 353 Pa. 162, 44 A.2d 566.

In the Shumaker case, 367 Pa. at page 46, 79 A.2d at page 443, supra, the Court said, quoting with approval from the Upholsterers' International Union case: '* * * 'The procedure prescribed by the Act of 1925 for testing jurisdiction 'in the court of first instance' applies to questions of jurisdiction either of the defendant or of the subject matter. Welser v. Ealer, 317 Pa. 182, 184, 176 A. 429. * * *' * * *'

In Welser v. Ealer, 317 Pa. at pages 183-184, 176 A. at page 429, supra, this Court said: 'This case is before us by virtue of [382 Pa. 95] the provisions of the Act of March 5, 1925, P.L. 23, authorizing an appeal from the preliminary determination of the lower court's 'jurisdiction over the defendant or of the cause of action ² for which suit is brought.' * * * The action is in trespass to recover damages for injuries resulting from an automobile accident. * * * Manifestly is has jurisdiction over the cause of action alleged in the statement; namely, trespass to recover damages for personal injuries. No other matters are open for inquiry in proceedings of this nature. Jurisdiction of the cause of action, as used in the statute, relates 'solely to the competency of the particular court to determine controversies of the general class to which the case then presented for its consideration belongs.' Skelton v. Lower Merion Twp., 298 Pa. 471, 473, 148 A. 846. See, also, Koontz v. Messer, 314 Pa. 434, 172 A. 457.'

Nowhere in the complaint is any averment made that the Federal or governmental agencies or officers who regulate or control plane flights have committed any trespass or any taking, nor do plaintiffs seek to enjoin them or to recover damages from them. The Federal agencies, we repeat, deny that they are necessary or indispensable parties, and admit the flights violated Federal regulations if they were below or outside the navigable airspace appropriated by Congress or if they were 15-30 feet above plaintiffs' homes.

The question of indispensable parties raises a jurisdictional question and consequently may be considered under the Act of 1925: Cf. Powell v. Shepard, 381 Pa. 405, 113 A.2d 261; Fineman v. Cutler, 273 Pa. 189, 193, 116 A. 819; Merner v. Department of Highways, 375 Pa. 609, 612, 101 A.2d 759; Hartley v. Langkamp and Elder, 243 Pa. 550, 90 A. 402. In Fineman v. Cutler, 273 Pa., at page 193, 116 A. at page 820, supra, the Court said: "One must be joined who otherwise, not being bound by the decree[382 Pa. 96] might assert a demand * * * which would be inequitable after the (principal defendants') performance of a decree in favor of the plaintiff'; and, again, 'a party is indispensable when he has such an interest that a...