Parker v. City of Philadelphia
| Decision Date | 08 January 1958 |
| Docket Number | 2772 |
| Citation | 391 Pa. 242,137 A.2d 343 |
| Parties | Wiley B. PARKER and Bernard Maurer, Appellants, v. CITY OF PHILADELPHIA, Richardson Dilworth, Mayor of the City of Philadelphia, Donald C. Wagner, Managing Director, Richard J. McConnell, Director of Finance, George DiLauro, City Treasurer, and David E. Smallwood, Commissioner of Streets. |
| Court | Pennsylvania Supreme Court |
Argued November 20, 1957
Appeal, No. 381, Jan. T., 1957, from order of Court of Common Pleas No. 5 of Philadelphia County, March T., 1957, No 10243, in case of Wiley B. Parker et al. v. City of Philadelphia et al. Order affirmed.
Equity. Before ALESSANDRONI, P.J.
Adjudication filed discharging plaintiffs' rule for preliminary injunction and final order entered. Plaintiffs appealed.
The order discharging plaintiffs' rule for a preliminary injunction is affirmed.
Joseph S. Lord, III, with him Barbara Ann Duffy, for appellants.
James L Stern, Deputy City Solicitor, with him James L. J Pie, Assistant City Solicitor, and David Berger, City Solicitor, for appellees.
Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, JONES and COHEN, JJ.
This is an appeal from the refusal of the court below to grant a preliminary injunction which would have restrained the City and several of its officers from proceeding with the selection and appropriation of an incinerator site at Umbria Street and Domino Lane in Philadelphia pursuant to an ordinance approved March 7, 1957.
On March 13, 1953, a rezoning ordinance was approved by the City of Philadelphia, after hearings, to permit the construction of an incinerator to service the northwest quadrant of Philadelphia on City-owned land near Fox Street and Abbotsford Avenue, located in the south central portion of that northwest quadrant. An adjacent property owner brought an action in equity to restrain erection of the incinerator. Testimony was taken in the court below, and the injunction was granted. On appeal to this Court, the order was modified and affirmed enjoining the City from enforcing the ordinance of March 13, 1953 because it was enacted in disregard of certain procedural requirements then in effect, Kelly v. Philadelphia, 382 Pa. 459, 115 A.2d 238.
On March 7, 1957 the Mayor of Philadelphia approved an ordinance entitled "An Ordinance to select and appropriate a certain tract of land situate on the northeast side of Umbria Street at Domino Lane for incinerator purposes; and repealing inconsistent legislation". This Domino Lane site, similarly intended to service the northwest quadrant of Philadelphia, was located near the northwest corner of that quadrant, some five miles from the earlier Fox Street and Abbotsford Avenue location.
This complaint in equity in the nature of a taxpayer's bill was filed on May 24, 1957 by two taxpayers, one of whom owns property about a half mile from the proposed Domino Lane site, and the other who owns property at a somewhat greater distance. The gravamen of the complaint is that the erection of the Domino Lane incinerator would "constitute an unnecessary diversion, wasting and misappropriation of the funds of the City of Philadelphia", particularly in view of the alleged lesser cost of erecting and operating the Fox Street site as previously contemplated. The basic allegations supporting this contention as set forth in the complaint are: (1) that the Domino Lane site would cost in excess of $300,000 more per year to construct, maintain and operate than an equivalent incinerator at the Fox Street location; (2) that the City would be compelled to expend substantial sums to purchase the Domino Lane site, whereas it already owns the Fox Street site; (3) that by acquiring private land in the Domino Lane area a loss of tax revenue now received from that land would occur to the detriment of the City; (4) that in order to utilize the Domino Lane site the City would be compelled "to widen, relocate and improve the streets in the vicinity" in order to provide adequate access to it; and (5) that funds would have to be expended by the City for contracts, drawings, etc., in connection with the proposed construction of the incinerator. [1]
The City's answer alleged that the Fox Street land had been purchased by the City for the purpose of improving its water supply system and is not now available for the construction of an incinerator; and (1) it denied that the construction, operation and maintenance costs of the Domino Lane site would be greater than at Fox Street; (2) that the Domino Lane land is inexpensive, being an unimproved, desolate area currently used as a burning dump, and that its value and that of sub-level land in the area would be increased by the use of the incineration product as a filler on the land; (3) that the loss of tax revenue to the City would be $528only per annum; (4) that although the streets in the vicinity will be widened, relocated and improved, the street improvement in the area is long overdue and would take place regardless of the incinerator construction, and (5) that the cost of contracts, drawings, etc., are not a loss, but rather the necessary expense of a needed improvement.
A hearing was held on plaintiff's rule for a preliminary injunction before the President Judge of Common Pleas Court No. 5 of Philadelphia on July 1, 1957. John S. Byrne, the owner of a tract of land amounting to slightly over twenty-nine acres, of which some twenty-three are to be condemned by the City for the proposed Domino Lane incinerator, testified that he purchased the entire tract early in 1956 for $25,000, and that the real estate taxes for the entire tract are "around $600". The plaintiff Parker testified that several of the roads in the area were not paved, that there is a house in the vicinity of 2,000 feet from the proposed incinerator, and that there are two other homes, which are in bad condition, closer to the proposed site, "... whether they are occupied at this time I don't know, but they were the last time I went by there." Plaintiffs further offered to call an appraiser in whose opinion the twenty-three acres to be condemned were said to be worth $60,000.
The bulk of plaintiff's case, however, consisted of excerpts from the testimony of the City's witnesses taken at the hearing below in Kelly v. Philadelphia, supra, some three and a half years earlier. The tenor of these excerpts was that, because of the location of the Domino Lane site on the more sparsely populated fringe of the city, the cost of collecting and transporting the rubbish would be much greater if the incinerator were located there, than if it were located at the Fox Street site, which is much closer to the heavily populated North Broad Street section. The City had considerable misgivings as to the probative value of this evidence - the statistical basis being several years old and the contemplated collection areas in the two cases being somewhat dissimilar - but the court below assumed arguendo that operation of the Domino Lane site would be somewhat more expensive than the Fox Street site, and this assumption may also be made for purposes of this appeal. The chancellor determined that the only evidence of waste in the record was this disparity in operating costs, and decided that this factor alone was insufficient to permit the grant of a preliminary injunction against a presumptively valid city ordinance. From the discharge of plaintiffs' rule for a preliminary injunction this appeal is prosecuted.
Plaintiffs have chosen to take this appeal from the refusal of the preliminary injunction and to incur the additional burden thereby placed upon them rather than waiting for a final determination on the merits. As we stated in Lindenfelser v. Lindenfelser, 385 Pa. 342 at p. 343, 123 A.2d 626:
"Our uniform rule is that, on an appeal from a decree which refuses, grants or continues a preliminary injunction, we will look only to see if there were any apparently reasonable grounds for the action of the court below, and we will not further consider the merits of the case or pass upon the reasons for or against such action, unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable: Commonwealth v. Katz, 281 Pa. 287, 288, 126 A. 765; Lesher v. Thomas S. Cassner Co., 285 Pa. 43, 44, 131 A. 657; Murray v. Hill, 359 Pa. 540, 541, 59 A.2d 877; Cohen et al. v. A. M. Byers Company et al., 363 Pa. 618, 619, 70 A.2d 837."
We believe that, not only did the chancellor have reasonable grounds for discharging plaintiffs' rule for a preliminary injunction, but that this action was eminently correct under the facts as presented.
Plaintiffs' basic contention, and indeed the only one on which they adduced any substantial evidence, was that it would be more expensive to operate the Domino Lane incinerator than it would be to operate one at the Fox Street location. Standing alone mere showing of a higher prospective operating cost of one incinerator site as compared to another, in the absence of fraud or similar impropriety, provokes the conclusion that there were other presumably valid reasons for the selection of the approved site by the responsible City officials and the enactment of the necessary legislation by...
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