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LOEWEN v. SHAPIRO. (06/28/57)

June 28, 1957

LOEWEN, APPELLANT,
v.
SHAPIRO.



Appeals, Nos. 29 and 30, May T., 1957, from decree of Court of Common Pleas of Dauphin County, No. 2184, Equity Docket No. 96, Commonwealth Docket, 1956, in case of Lloyd R. Loewen et ux. v. Harry Shapiro, Secretary of The Department of Welfare of Pennsylvania, and The General State Authority. Decree affirmed.

COUNSEL

John McI. Smith, with him James H. Stewart, Jr., Nauman, Smith, Shissler & Hall and Lutz, Fronefield, Warner & Bryant, for appellants.

Stephen B. Narin, Deputy Attorney General, with him Thomas D. McBride, Attorney General, for appellee, Secretary of the Department of Welfare of Pennsylvania.

Edward A. Collins, Jr., with him Warren W. Holmes, for appellee, The General State Authority.

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

Author: Arnold

[ 389 Pa. Page 611]

OPINION BY MR. JUSTICE ARNOLD

The plaintiffs, who are husband and wife and residents of Delaware County, brought this action in equity against the Secretary of the Department of Welfare, and The General State Authority, the latter a body corporate of the Commonwealth organized under the Act of March 31, 1949, P.L. 372, 71 PS ยง 1707.1 et seq. They seek to restrain defendants from acquisition of land in Delaware County and erection thereon of a mental hospital, all of which was being done under authority of the Act of August 19, 1953, P.L. 1152 (Special Act, not reported in Purdon's). Defendants having interposed preliminary objections, the court below entered judgment in favor of defendants.

The complaint sought equitable relief in the plaintiffs' capacities as (a) citizens of Delaware County and the Commonwealth, and (b) as taxpayers of the Commonwealth. Generally, it alleged that the Authority

[ 389 Pa. Page 612]

    had made a choice of a site in Delaware County and that defendants have not complied with the Act under which it presumed to do so.

The averments of non-compliance with the statute are, in the main, inadequately pleaded, and the remainder are irrelevant. It is clear from the whole of the complaint that the averments of damage are not based on the manner in which the site was chosen, but on the choice itself. As citizens, the plaintiffs cannot so complain. They attempt to convert the fact of taking or choice of land into a special injury; but the rights they seek to protect are not within the protection of an equity action. The provisions of the Act having been complied with, - and there are no specific averments of fact to the contrary, - plaintiffs cannot succeed in this action. They averred that defendants failed to obtain formal approval of the site from the Governor; that the General State Authority abused its discretion through having consulted and obtained the cooperation of the Secretary of Welfare in determining choice of site; and that because the first site chosen had been abandoned, a second site could not be chosen thereafter. First, there is no averment that the site was not acceptable to the Governor; and second, there is no requirement that the Governor's approval be by formal action. In addition, the General State Authority, in its investigation and determination of a site, must, of necessity, seek out all sources helpful to it in determining the most acceptable site. We cannot say that the averments of improper procedure are sufficient to sustain the complaint. At most the plaintiffs have merely denied that proper procedure was followed, and have not averred any matter to substantiate their claim.

If there is a taking by the General State Authority, the remedy of plaintiffs is by proper action to assess damages for such ...


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