Mahan v. Lower Merion Tp.

• Decision Date: 20 July 1965
• Citation: 212 A.2d 217,418 Pa. 558
• Parties: Francis A. MAHAN and Alice Rolfe Read Mahan, his wife, Appellants, v. LOWER MERION TOWNSHIP, Appellee.
• Court: Pennsylvania Supreme Court

Page 217

212 A.2d 217

418 Pa. 558

Francis A. MAHAN and Alice Rolfe Read Mahan, his wife, Appellants, v. LOWER MERION TOWNSHIP, Appellee.

Supreme Court of Pennsylvania.

July 20, 1965.

Thomas J. Burke, Ardmore, for appellants.

John E. Forsythe, Township Sol., Norristown, for appellee.

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

O'BRIEN, Justice.

Plaintiffs, property owners, appealed from an Order dismissing their complaint in equity for lack of jurisdiction. Appellee, on November 20, 1963, enacted an ordinance condemning premises owned by the plaintiffs for use as an historic public park and recreation area and authorized the proper officers of the Township to execute a Bond to secure payment of damages to the owners.

The plaintiffs, on December 18, 1963, filed a complaint for injunctive relief to restrain the defendant-Township from proceeding with the condemnation of their property. Appellants challenge the validity of the proposed condemnation. The court below dismissed the complaint, relying on Balazick v. Dunkard-Bobtown Mun. Auth., 414 Pa. 182, 199 A.2d 430 (1964); Cunfer v. Carbon Airport Auth., 414 Pa. 408, 200 A.2d 768 (1964); and Pgh. Rwys. Co. v. Port of Alleg. Co. Auth., 415 Pa. 177, 202 A.2d 816 (1964).

We held in Balazick that a court of equity has no jurisdiction to determine whether a municipal authority has the right of eminent domain, and we said: 'In Schwab v. Pottstown Borough, 407 Pa. 531, 180 A.2d 921, we held that a court of equity had no jurisdiction to determine whether there had been a taking of private property for public use or to assess and award damages for such taking. The decisional point in Schwab was that, under the statutory law of Pennsylvania, a complete and adequate procedure has been provided to guard and protect the constitutional rights of private owners in all condemnation proceedings. See also: Gardner v. Allegheny County, 382 Pa. 88, 114 A.2d 491; Creasy v. Lawler, 389 Pa. 635, 133 A.2d 178, affirming per curiam 8 Pa.Dist. & Co.R.2d 535; Martin v. Creasy, 360 U.S. 219, 79 S.Ct. 1034, 3 L.Ed.2d 1186. * * * The basic challenge in the equity action is clearly to the right, power and authority of the Authority to exercise any right of eminent domain under the circumstances and the resolution of that issue can and should be made only in eminent domain proceedings. As this Court said in Schwab, supra, 407 Pa. p. 534, 180 A.2d p. 923: 'It is a commonplace that where the legislature has provided a remedy or procedure, that remedy or procedure is exclusive and alone must be pursued. Jacobs v. Fetzer, 381 Pa. 262, 112 A.2d 356 (1955). See also Smith v. Zoning Board of Adjustment, 407 Pa. 122, 179 A.2d 192 (1962) and Salisbury Township v. Sun Oil Co., 406 Pa. 604, 179 A.2d 195 (1962).'' (Emphasis in original).

We affirmed the dismissal of the plaintiffs' complaint in equity on the ground of lack of jurisdiction.

In Cunfer, supra, we vacated the issuance of a temporary injunction order on the ground that a court of equity has no jurisdiction to determine whether a municipal authority has the right of eminent domain or whether it has properly exercised any right of eminent domain. The plaintiff there brought an action in equity to challenge the validity of the authority condemnation, citing therein Balazick and Schwab.

In Pgh. Rwys. Co., supra, the lower court refused to issue a preliminary injunction to restrain the Port Authority from filing its petition for condemnation. We held that equity did not have jurisdiction to determine whether a municipal authority has the right of eminent domain or whether it has properly exercised any right of eminent domain. These cases stand for the proposition long recognized that equity jurisdiction is not available when there is an adequate remedy at law. We must, therefore, affirm the dismissal of the plaintiffs' complaint for lack of jurisdiction in equity.

The unusual feature of this case is that the eminent domain code ¹ was enacted after the condemnation ordinance was passed by the Township, and all sections of the code are now in effect.

The ordinance was enacted on November 20, 1963, and on December 18, 1963, plaintiffs' complaint in equity was filed. From the time of the filing of the complaint, many motions were filed by the parties and the court heard arguments thereon. On September 24, 1964, the court en banc filed its opinion and order, from which order this appeal was taken. In the meantime, the eminent domain code became effective, upon the approval by the Governor on June 22, 1964, with the exception of provisions of Article IV, which became effective on September 1, 1964, and applied to all condemnations effected thereafter. Article III, Sec. 302, 26 P.S. § 1-302, provides that: 'This act shall take effect immediately upon approval, and shall apply to all condemnations effected thereafter, except the provisions of Article IV, which shall not take effect until September 1, 1964 and shall apply to all condemnations effected thereafter. The provisions of Articles V and VII shall also apply to all steps taken subsequent to the effective date of this act in all condemnation proceedings in which the condemnation was effected prior to the effective date of this act.'

Article IV, which became effective on September 1, 1964, provides for the procedure to condemn. Article V provides the procedure for determining damages, which article applies to all steps taken subsequent to the effective date of the Act and in all condemnation proceedings in which the condemnation was effected prior to the effective date of the Act. Article VII, covering evidence, is likewise effective as Article V.

The procedure to condemn in this case had reached the point of an enactment of an Ordinance without Bond having been offered or filed by the appellee-Township. We believe the interests of justice require that this condemnation should proceed under all of the provisions of the new eminent domain code in order that a determination be made in limine of the legality of the condemnation. ² We make these comments in order that there will be an expeditious determination of this controversy.

Order affirmed dismissing complaint for lack of jurisdiction in equity. Costs on appellants.

MUSMANNO, J., files a dissenting opinion in which ROBERTS, J., joins.

MUSMANNO, Justice (dissenting).

I entertain a different view of the powers of equity in cases of this character and accordingly dissent from the Majority Opinion. In order that my position may be made clear I repeat some of the salient facts in the case. In November, 1963, the Board of Commissioners of Lower Merion Township in Lehigh County enacted an ordinance providing for the condemnation, under eminent domain proceedings, of a tract of land owned by Francis A. Mahan and Alice Rolfe Read Mahan, his wife, for the purpose of creating a historic public park and recreation area. On December 18, 1963, the Mahans filed an action in equity in the Court of Common Pleas for a writ of mandamus against the Township, averring, inter alia, that the Township was without authority under the provisions of the First Class Township Code, to maintain historical properties, that the attempted taking constituted an abuse of the Township's power of eminent domain since the land was not necessary for public use, and that the appropriation would result in 'immediate and irreparable damage to the plaintiffs.'

The Township filed Preliminary Objections contesting equity jurisdiction in the matter, which the Court sustained, dismissing the Complaint for lack of jurisdiction. In doing so, the Court relied principally on three recent decisions of this court, namely, Balazick v. Dunkard-Bobtown Municipal Authority, 414 Pa. 182, 199 A.2d 430; Cunfer v. Carbon Airport Authority, 414 Pa. 408, 200 A.2d 768; and Pittsburgh Railways Co. v. Port of Allegheny County Authority, 415 Pa. 177, 202 A.2d 816. Adopting the reasoning advanced by the Township, the Court held that whatever the law may have been prior to the indicated decisions, it was now clear that in all condemnation proceedings, the statutory proceedings with respect thereto, provide complete protection for property owners and that, therefore, equitable relief in that area is not available.

An analysis of the three cited cases reveals that in each of them the usual statutory remedy was indeed adequate to safeguard the property owners' rights. In none of those cases had the complaining party protested that irreparable harm was being threatened, as here. In Balazick v. Dunkard-Bobtown Mun. Auth., 414 Pa. 182, 185, 199 A.2d 430, 431, this Court said:

'The basic challenge in the equity action is clearly to the right, power and authority of the Authority to exercise any right of eminent domain * * * proceedings.'

We made no pronouncement as to what our decision would be if irreparable harm had been pleaded. In fact the Balazick decision had been predicated on Schwab v. Pottstown Borough, 407 Pa. 531, 180 A.2d 921, wherein we said:

'As we recently held in Perloff Bros., Inc. v. Cardonick, 406 Pa. 137, 176 A.2d 413 (1962), a preliminary injunction will not issue unless: (1) the rights of the plaintiff are clear; (2) there is an urgent necessity to avoid injury which cannot be compensated for by damages; and (3) greater injury will be done by refusing it than in granting it. None of the necessary elements are present here. In essence, what appellant fears, and consequently seeks to enjoin, is that a taking of an easement instead of a fee simple interest will result in...