Appeal, No. 270, Jan. T., 1959, from order of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1958, No. 2590, in case of Louis H. Adler et al. v. City of Philadelphia et al. Order affirmed. Equity. Adjudication filed dismissing defendants' preliminary objections to plaintiffs' complaint and order entered, opinion by ALEXANDER, J. Defendants appealed.
Levy Anderson, First Deputy City Solicitor, with him Yale B. Bernstein and David L. German, Jr., Assistant City Solicitors, and David Berger, City Solicitor, for appellants.
Herbert M. Linsenberg, with him Meltzer & Schiffrin, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
This appeal by the City of Philadelphia under the Act of March 5, 1925, P.L. 23, Section 1, 12 PS § 672, ostensibly questions the lower court's jurisdiction of the subject-matter. It seems clear, however, that the appellant misconceives the intended scope of the cited statutory provision. The Act of 1925 permits an appeal from an otherwise unappealable interlocutory order for the review of the lower court's questioned jurisdiction of either the defendant or the subject-matter or both, as the case may be. The facts necessary to an understanding of the question presently raised by the appellant are as follows:
Two of the plaintiffs, Louis H. Adler and wife, are the owners of certain property on North 15th Street, Philadelphia. The remaining plaintiff, Adler The Clothier, Inc., is a tenant of the Adler property and is engaged in the business of selling, tailoring and cleaning men's clothing. To the rear of the Adler building is Appletree Street, which runs from North 16th Street at a right angle eastward toward North 15th Street. It does not extend as far as North 15th Street but ends at the Adler building.
On September 26, 1958, the Mayor of Philadelphia approved an Ordinance of City Council authorizing the vacation of a portion of Appletree Street at the rear of the Adler building. The ordinance also directed the Board of Surveyors of the Department of Streets to strike so much of Appletree Street from the City Plan, the Board of Surveyors being empowered by City Council, acting under statutory authority,*fn* to confirm or reject all original or revisions of street plans of the City when such plans or revisions have been authorized by ordinance of City Council. The properties abutting that part of Appletree Street to be vacated are owned by the American Stores Company. Following enactment of the Ordinance of September 26, 1958, the Board of Surveyors held a public hearing in respect of the vacation of a portion of Appletree Street but had taken no further action in the premises when this suit was instituted. The plaintiffs have joined the Board of Surveyors with the City of Philadelphia in the instant suit as a party defendant.
The plaintiffs allege in their complaint that the bill, which became the Ordinance of September 26, 1958, was introduced in City Council at the request of the American Stores Company and that agents of
that company have stated their intention to cause the Board of Surveyors to vacate the indicated portion of Appletree Street in order to enable the American Stores Company to erect a fence at the end of Appletree Street where the portion to be vacated begins so as to block off access from the street to the American Stores Company's parking lot. The fence would ...