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May 23, 1955


Appeals, Nos. 185 to 190, inclusive, and 193 to 221, inclusive, March T., 1954, from decrees of Court of Common Pleas of Allegheny County, Oct. T., 1953, Nos. 1288, 1289, 1640, 1706 and 1707, in cases of K. C. Gardner et ux. v. County of Allegheny, Trans World Airlines, Inc., et al.; Helen May Springer v. Same; Elizabeth B. M. Gardner and Kirtland C. Gardner, Jr. v. Same; Nancy Springer Patton v. Same, and Thomas N. Griggs v. Same. Decree modified and, as modified, affirmed.


Maurice Louik, Assistant County Solicitor, with him Nathaniel K. Beck, County Solicitor for Allegheny County, Appellant.

J. Henry O'Neill, with him J. Garfield Houston, Stephen E. Nash and Blaxter, O'Neill & Houston, for airlines, appellants.

William A. Blair, with him David b. Fawcett, William S. Marshall and Griggs, Moreland, Blair & Douglass, for appellees.

James L. Highsaw, Chief, Litigation and Research Division, Civil Aeronautics Board, with him Stanley N. Barnes, Assistant Attorney General, John W. McIlvaine, United States Attorney, James E. Kilday and Albert Parker, Special Assistants to the Attorney General; Frank M. Stone, General Counsel of the Civil Aeronautics Board, John H. Wanner, Associate General Counsel, O. D. Ozment, Chief, Litigation and Research Division, Gerald F. Krassa, Attorney, of Civil Aeronautics Board; Robert P. Boyle, General Counsel of the Civil Aeronautics Administration, and Gerald F. White, Chief, Enforcement and Litigation Division, of Civil Aeronautics Administration, for Civil Aeronautics Board and Administrator of Civil Aeronautics, amici curiae.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Bell

[ 382 Pa. Page 91]


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. Page 92]

    the navigable air space*fn1 is five hundred feet above the 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 land owners complain that as a result of these take-offs and landings, which at times amount to as many as eight flights in ten to fifteen minutes, they have suffered from noises, vibrations, lights, and other nuisances when planes fly over their homes; that their sleep and rest are interrupted and disturbed; that normal as well as telephone conversations are interfered with; that the entertainment of guests and visitors is rendered embarrassing; and that the low flights constitute a real danger to the occupants of their properties.

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) and 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. Page 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 PS 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 ab initio 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. Page 94]

Defendants by their "preliminary objections admit as true all facts which are averred in the bill of complaint but not the pleaders' conclusions or averments of law": Narehood v. Pearson, 374 Pa. 299, 302, 96 A.2d 895. Moreover, when the sustaining of defendants' preliminary objections will result in 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.

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 and 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., supra, the Court said (at page 46), 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., supra, this Court said (pages 183-184): "This case is before us by virtue of

[ 382 Pa. Page 95]

    the provisions of the Act of 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*fn2 for which suit is brought.' The action is in trespass to recover damages for injuries resulting from an automobile accident ... Manifestly it 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. See also Koontz v. Messer, 314 Pa. 434."

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 then. 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 plaintiff's 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 & Elder, 243 Pa. 550, 90 A. 402. In Fineman v. Cutler, 273 Pa. supra, the Court said (page 193): "'One must be joined who otherwise, not being bound by the decree,

[ 382 Pa. Page 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 final decree cannot be made without affecting it or leaving the controversy in such a condition that the final determination may be wholly inconsistent with equity and good conscience'; ...". We hold that the Federal Agencies and Federal Officers are not necessary and indispensable parties.

The airlines would have us limit this opinion to the question of indispensable parties, alleging that that was the only question raised in their "Statement of the Questions Involved". Nevertheless, in their brief at the first argument they discussed the Civil Aeronautics Act which is pertinent and necessary in any determination of the cause of action, and the other defendant, namely, Allegheny County, contended the Court lacked jurisdiction over the cause of action. On the reargument all parties exhaustively briefed and ably argued the question of jurisdiction over the cause of action.

When a question of jurisdiction is raised or involved, neither the appellants nor all of the parties combined can limit the Court's determination of jurisdiction to one point and exclude all others which pertain to jurisdiction. There are many precedents for this Rule, the most recent on being Jacobs v. Fetzer, 381 Pa. 262, 112 A.2d 356. In that case the Burgess and Council of Ridley Park appealed from a final decree of a Court of Equity which held a zoning ordinance to be unconstitutional. Although neither the appellants nor the appellee nor the Court below questioned or challenged Equity's jurisdiction and although neither party raised or briefed or orally argued that question in this Court, this Court of its own motion

[ 382 Pa. Page 97]

    dismissed the appeal on the ground that Equity had no jurisdiction. See to the same effect Fineman v. Cutler, 273 Pa. 189, 193, 116 A. 819.

In Bourdieu v. Pacific Western Oil Co., 299 U.S. 65, the Court said (pp. 70, 71): "The rule is that if the merits of the cause may be determined without prejudice to the rights of necessary parties, absent and beyond the jurisdiction of the court, it will be done; and a court of equity will strain hard to reach that result. West v. Randall, 2 Mason 181, 196 (opinion by Mr. Justice STORY); Cole Silver Mining Co. v. Virginia & G.N.W. Co., 1 Sawyer 685, 689, (opinion by Mr. Justice FIELD)); Story's Equity Pleadings, 8th ed., §§ 77, 96. And see Russell v. Clarke's Executors, 7 Cranch 69, 98; Elmendorf v. Taylor, 10 Wheat. 152, 167-168. Cf. Equity Rule 39.


"If it be urged that the United States is an indispensable party and, hence, that the court may not proceed even to inquire whether the bill states a cause of action, the answer is that good sense suggests precisely the contrary." In Forgione v. United States, 202 F.2d 249, the Court said: "Jurisdiction may not be conferred or waived by the parties and it is the court's duty to determine its existence."

Apart from precedent, a careful analysis will demonstrate the lack of merit in this contention of the Airlines. If this Court is limited to a consideration of "necessary or indispensable parties", we could not properly decide whether a Court of Equity had jurisdiction of plaintiffs' claim for damages for a "taking" or whether low, dangerous flights over plaintiffs' homes below the navigable airspace - which are admitted by the pleadings - could be enjoined. What would be the result? The litigants would go back to the Court below and produce at tremendous labor, time

[ 382 Pa. Page 98]

    and expense voluminous testimony as to frequent trespasses 15-30 feet above plaintiffs' homes or below or outside the necessary airspace for safe take-offs and landings and also as to the subject of a "taking" and the value of plaintiffs' property before and after the taking or whatever measure of damages each party believed was the pertinent measure. The Chancellor would then spend considerable time (a) studying the voluminous testimony and the extensive briefs sur the many difficult legal questions involved and thereafter (b) making findings of fact and conclusions of law; the Court en banc would review the many exceptions which would undoubtedly be filed; and after a final decision by that Court the losers would, in all likelihood, appeal to this Court. If plaintiffs appealed from the lower Court's holding that it had no jurisdiction to issue an injunction against frequent low, dangerous flights over plaintiffs' homes, or (2) if defendants appealed from an award of damages by a Court of Equity for a "taking", on the ground that Equity had no jurisdiction - thus raising the identical issues which are now before us - and we should then decide the jurisdictional issue in favor of plaintiffs in the first illustration and the jurisdictional issue in favor of the defendants in the second illustration - wouldn't the litigants and their attorneys feel aggrieved?

To summarize: Upon reason and authority it is clear that the Court has the power sua sponte to decide the important and essential two-fold questions which are always necessarily involved in an appeal under the Act of 1925, i.e., the jurisdiction of the lower Court (a) over the parties defendants and (b) over the cause of action.

Have plaintiffs pleaded a cause of action over which a Court of Equity has jurisdiction, namely, frequent dangerous flights below the navigable airspace?

[ 382 Pa. Page 99]

Navigable Air Space Below or Outside the Minimum Safe Safe Altitudes of Flight

In recognition of the rapidly growing nationwide (and worldwide) air commerce throughout our Country, Congress enacted the Civil Aeronautics Act of 1938,*fn3 which was designed to promote, control, develop and minutely regulate our air transportation system and adapt it to the national public interest. This Act of Congress, which preempted a national navigable airspace and defined it as the airspace above the minimum safe altitudes of flight which they authorized the Civil Aeronautics Authority and later the Civil Aeronautics Board to prescribe, was based not upon the Federal Government's ownership of all airspace or even all navigable airspace, but was founded and based upon the interstate commerce power of Congress. Congress, by virtue of the Interstate Commerce clause, has paramount power and control over the air, just as it has over navigable streams and interstate commerce on land. But this power of Congress over interstate commerce is not exclusive, as has been demonstrated by a myriad of decisions sustaining State power in connection with interstate commerce on land and over navigable streams, as well as by the Aeronautics Act itself, and cases interpreting it. Furthermore, the remedies provided by the Act are, according to § 676, "not exclusive".

In Braniff Airways v. Nebraska State Board, 347 U.S. 590, the United States Supreme Court said (pp. 594-597): "Appellant argues that federal statutes governing air commerce enacted under the commerce power pre-empt the field of regulation of such air commerce and preclude this tax. Congress, by the Civil Aeronautics Act of 1938, 52 Stat. 973, 977, 1028, § 1107(i)(3),

[ 382 Pa. Page 10049]

U.S.C. § 176(a), enacted: 'The United States of America is declared to possess and exercise complete and exclusive national sovereignty in the air space above the United States, including the air space above all inland waters and the air space above those portions of the adjacent marginal high seas, bays, and lakes, over which by international law or treaty or convention the United States exercises national jurisdiction.' This provision originated in the Air Commerce Act of 1926, 44 Stat. 568, 572, § 6. The 1938 Act also declares 'a public right of freedom of transit' for air commerce in the navigable air space to exist for any citizen of the United States. 52 Stat. 980, § 3, 49 U.S.C. § 403.

"The provision pertinent to sovereignty over the navigable air space in the Air Commerce Act of 1926 was an assertion of exclusive national sovereignty. The convention between the United States and other nations respecting international civil aviation ratified August 6, 1946, 61 Stat. 1180, accords. The Act, however, did not expressly exclude the sovereign powers of the states. H.R. Rep. No. 572, 69th Cong., 1st Sess., p. 10. The Civil Aeronautics Act of 1938 gives no support to a different view. After the enactment of the Air Commerce Act, more than twenty states adopted the Uniform Aeronautics Act. It had three provisions, indicating that the states did not consider their sovereignty affected by the National Act except to the extent that the states had ceded that sovereignty by constitutional grant. The recommendation of the National Conference of Commissioners on Uniform State Laws to the states to enact ...

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