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PARKER v. PHILADELPHIA. (01/08/58)

January 8, 1958

PARKER, APPELLANT,
v.
PHILADELPHIA.



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.

COUNSEL

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.

Author: Chidsey

[ 391 Pa. Page 243]

OPINION BY MR. JUSTICE CHIDSEY

This is an appeal from the refusal of the court below to grant a preliminary injunction which would

[ 391 Pa. Page 244]

    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. ...


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