Mahan v. Lower Merion Township

Opinion by Me. Justice O’Brien, Plaintiffs, property owners, appealed from an order dismissing tlieir 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 authorised 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 Balaziok 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. D. & C. 2d 535; Martin v. Creasy, 360 U.S. 219, 3 L. Ed. 2d 1186, 79 S. Ct. 1034. . . . The basic challenge in the equity action is clearly to the right, power and authority of the Author [560] ity 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, p. 534: ‘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 code1 was enacted after the condemnation ordi [561] nance 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. Section 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 corn demnation 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 [562] 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. Decree affirmed dismissing complaint for lack of jurisdiction in equity. Costs on appellants. Footnotes [1] Act of 1964, June 22, P. L. 84, 26 P.S. §1-101 et seq. [2] See comment to §406 by the Joint State Government Commission in its 1964 Report — Eminent Domain Code.