South Fayette Tp. v. Commonwealth
| Decision Date | 28 April 1978 |
| Citation | 477 Pa. 574,385 A.2d 344 |
| Parties | TOWNSHIP OF SOUTH FAYETTE v. COMMONWEALTH of Pennsylvania and Milton J. Shapp et al., Appellants. |
| Court | Pennsylvania Supreme Court |
Argued Nov. 14, 1977.
Thomas F. Halloran, Robert J. Winchester, Asst Attys. Gen., Pittsburgh, for appellants.
Timothy P. O'Reilly, Pittsburgh, for appellee.
Before EAGEN C. J., and O'BRIEN, ROBERTS, POMEROY, NIX, MANDERINO and PACKEL, JJ.
On May 18 1977, the Commonwealth Court granted appellee Township of South Fayette a preliminary injunction ordering appellant Commonwealth of Pennsylvania to cease operating the Oakdale Intensive Treatment Unit (Oakdale ITU) for juveniles adjudged delinquent. Oakdale ITU is located on a four-acre parcel owned by the Commonwealth within South Fayette Township. The Commonwealth Court, based on City of Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d 607 (1976), determined that the Commonwealth's operation of Oakdale ITU violated the South Fayette Township zoning ordinance [1] and that issuance of a preliminary injunction was therefore required. The Commonwealth contends South Fayette Township was not entitled to the preliminary injunction. We agree and vacate. [2]
On May 20, 1977, two days after the preliminary injunction was granted, the Commonwealth filed in the Commonwealth Court notice of appeal from the Commonwealth Court's decree [3] and applied for supersedeas. The Commonwealth Court granted supersedeas on May 23, 1977. The Commonwealth did not file concurrent notice of appeal in this Court [4] until June 30, 1977. This was after South Fayette Township had, on June 24, filed a motion to dismiss the appeal pursuant to Pa.R.A.P. 1971. [5] This Court directed that argument on South Fayette Township's motion to dismiss the appeal be heard together with the Commonwealth's appeal from issuance of the preliminary injunction.
South Fayette Township argues the Commonwealth's appeal should be dismissed under Pa.R.A.P. 1971 because when the Commonwealth filed a timely notice of appeal in the Commonwealth Court, it failed to file concurrent notice with this Court as required by Pa.R.A.P. 907. The Commonwealth admits it inadvertently failed to comply with Rule 907, but contends that dismissal under Pa.R.A.P. 1971 is discretionary and that South Fayette Township has not suffered any harm from this error. We agree.
Within days of learning of its error, the Commonwealth filed notice of appeal in this Court. The case was immediately set for argument during the next session of this Court, and both parties promptly filed records and briefs. South Fayette Township has failed to show that the Commonwealth's failure to file concurrent notice in this Court of its timely appeal filed in the Commonwealth Court was done in bad faith or that South Fayette Township had been injured by the Commonwealth's inadvertence. On this record, we do not deem it appropriate to dismiss the Commonwealth's appeal. [6]
On May 18 1977, the Commonwealth Court held a hearing on South Fayette Township's motion for a preliminary injunction seeking to enjoin the Commonwealth from operating on property owned by the Commonwealth and located within South Fayette Township an intensive treatment unit for juveniles adjudicated delinquent. Evidence was received on whether the Commonwealth's use of the property created a safety and security problem for residents of South Fayette Township. Following the hearing, the court issued a decree enjoining the Commonwealth "from occupying or using or permitting others to occupy or use the subject property as a unit for juveniles adjudicated delinquent" and directing "all persons (then) occupying said premises as a juvenile detention facility to vacate the same within fourteen days of the receipt of a certified copy of (the) order." The court's Memorandum Opinion concludes that the Commonwealth's use of the property was contrary to the zoning ordinance and therefore that the Township was "entitled to the relief requested under the decision of our Supreme Court in City of Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d 607 (1976)."
The scope of appellate review of issuance of a preliminary injunction is limited to determining if any apparently reasonable grounds exist for the action of the court below. McMullan v. Wohlgemuth, 444 Pa. 563, 570, 281 A.2d 836, 840 (1971); Keystone Guild, Inc. v. Pappas, 399 Pa. 46, 48, 159 A.2d 681, 683 (1960); Herman v. Dixon, 393 Pa. 33, 36, 141 A.2d 575, 577 (1958). In order to sustain a preliminary injunction, the plaintiff's right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted. Keystone Guild, Inc. v. Pappas, supra. Furthermore, a preliminary injunction containing mandatory provisions which will require a change in the positions of the parties, should be granted even more sparingly than one which is merely prohibitory. McMullan v. Wohlgemuth, supra. Based upon this standard of review, we conclude entry of the preliminary injunction was inappropriate and must be vacated.
Significantly, the legal issues raised and their application to facts yet undeveloped are sufficiently unclear that South Fayette Township's right to enjoin continued use of the Oakdale ITU is far from clear. The Commonwealth Court and South Fayette Township erred in asserting that this Court's decision in City of Pittsburgh, supra, establishes that any land use by the Commonwealth contrary to local zoning ordinances may, without more, justify injunctive relief. To the contrary, City of Pittsburgh establishes that applicability of zoning regulations to the Commonwealth depends upon an examination in each case of the nature of the competing legislative grants of authority, the purposes for which these grants were created and the facts of the individual case. Id. at 182, 360 A.2d at 612. Thus, this Court in City of Pittsburgh, faced with the question of whether the Bureau of Corrections could use leased premises in a residential section of Pittsburgh as a pre-release center for adult female convicts in contravention of the city's zoning ordinance, examined 1) the authority given the Bureau of Corrections to use leased premises for pre-release centers, Act of July 16, 1968, P.L. 351, § 1, 61 P.S. § 1051 (Supp.1977); 2) the grant of power to a second class city to enact zoning ordinances, Act of March 31, 1927, P.L. 98, § 1, 53 P.S. § 25051 (1957); 3) the specific "Conflict with other laws" provision in the Act giving second class cities zoning authority, Act of March 31, 1927, P.L. 98, § 8, 53 P.S. § 25058 (1957); and 4) the particular circumstances of the case, including the existence of other suitable sites for establishment of a pre-release center and the "density concerns" of the city. We concluded that the Bureau of Corrections was subject to local zoning regulations in establishing pre-release centers for adult female convicts because 1) the act authorizing the Bureau to establish pre-release centers evidenced no legislative intent to override second class cities' statutory zoning powers; 2) the legislative grant of zoning power to second class cities explicitly directed that zoning regulations shall govern whenever zoning regulations of second class cities impose higher standards than are required in any other statute; and 3) other suitable locations were available to accommodate both the community's interest in low-density residential zoning and that of the Bureau of Corrections in establishing pre-release centers.
South Fayette Township's entitlement to injunctive relief is thus far from clear. The Commonwealth Court must determine whether the Commonwealth can fulfill its responsibility as parens patriae to provide care and treatment for delinquent children by establishing a facility for fifteen juveniles on four acres of land owned by the Commonwealth within South Fayette Township, a first class township. Resolution of this question depends upon an analysis of 1) whether the Commonwealth's intended use of the property violated the zoning ordinance; 2) the significance of the Commonwealth's ownership of the property; 3) the responsibility of the Commonwealth as parens patriae, derived from the Juvenile Act, Act of December 6, 1972, P.L. 1464, § 1, 11 P.S. §§ 50-101 et seq. (Supp.1977), to treat juveniles; [7] 4) the authority to establish juvenile rehabilitation facilities given the Department of Public Welfare (DPW), Act of June 13, 1967, P.L. 31, § 724, 62 P.S. § 724 (1968); 5) the absence in the first class township zoning authority of a "Conflict with other laws" provision, such as was present in City of Pittsburgh, expressly directing that zoning regulations govern; and 6) the particular circumstances of the case.
Moreover South Fayette Township has made no showing that its need for relief is so immediate or the possibility of irreparable harm so great as to require issuance of this preliminary injunction, partially mandatory in nature. Most of the evidence presented concerned the "irreparable injury" prong of the test for issuance of a preliminary injunction. South Fayette Township introduced evidence concerning incidents occurring on the property when it was operated by the Boy's Industrial Home of Western Pennsylvania, a facility housing up to 350 delinquent and dependent children with no security surroundings. South Fayette Township also discussed three escapes from the facility in 1976 when it was operated by a private trustee and before implementation of the complete security program installed by the Commonwealth. Reports were available...
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