Appeals, Nos. 215 and 216, March T., 1960, from decree of Court of Common Pleas of Allegheny County, July T., 1960, No. 2879, in case of St. Peter's Roman Catholic Parish, by Dominick Cerminaro and Dominick Bonomo, Trustees ad Litem and individually; and John J. Wright, Bishop (Involuntary Plaintiff) v. Urban Redevelopment Authority of Pittsburgh and City of Pittsburgh. Decree reversed. Equity. Decree entered granting preliminary injunction, opinion by NIXON, J. Defendants appealed.
Theodore L. Hazlett, Jr., for Urban Redevelopment Authority of Pittsburgh, appellant.
David Stahl, City Solicitor, with him Mead J. Mulvihill, Jr., Assistant City Solicitor, for City of Pittsburgh, appellant.
Louis C. Glasso, for appellees.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.
OPINION BY MR. CHIEF JUSTICE JONES
The granting of an injunction on the complaint in this case was egregious error. It may not even be extenuated as a palpable abuse of discretion. The record afforded no opportunity for an exercise of discretion. The court below should have perceived at once that the complaint was concerned with the same parties, the same subject matter and the same issues as were involved in the former proceeding which was terminated by our final order of December 4, 1958, affirming the order of the court below which had sustained the defendants' preliminary objection, raising the plaintiffs' lack of capacity to sue, and dismissed the complaint: St. Peter's Roman Catholic Parish v. Urban Redevelopment Authority of Pittsburgh, 394 Pa. 194, 146 A.2d 724.
Following that, counsel for the plaintiffs sought to appeal our final order to the Supreme Court of the United States which, on May 4, 1959, dismissed the appeal and, treating the appeal papers as an application for a certiorari, denied certiorari: 359 U.S. 435. Thereafter, on May 11, 1959, the plaintiffs filed a complaint in equity in the United States District Court for the Western District of Pennsylvania, raising the identical questions previously decided by this court adversely to the plaintiffs, as above indicated. A statutory court was convened to hear and determine the Federal proceeding which, on subsequent motion, the three judge court dismissed on the ground that this court's above mentioned decision was res judicata of the plaintiffs'
lack of capacity to sue. On the plaintiffs' direct appeal from the district court's decree, the Supreme Court of the United States by a decision on April 25, 1960, dismissed the appeal: sub nom. Cerminaro v. Urban Redevelopment Authority of Pittsburgh, 362 U.S. 457.
What the plaintiffs obviously hoped to obtain as bolstering for their complaint in the instant suit is an order from the Vatican compelling the Bishop of Pittsburgh Diocese to join therein as a party plaintiff. Thus, they aver in their present bill, as follows: "29. The Bishop of the Pittsburgh Diocese has refused to join as plaintiff or in any other capacity in any action to protect the rights of St. Peter's Church and of its parishioners. Plaintiffs are making application to the Vatican to instruct the Bishop to take appropriate steps to file or join in an appropriate action to redress the rights of the parishioners. Pending action by the Vatican upon this matter, plaintiffs have joined the present Bishop John J. Wright, as involuntary plaintiff since he is a necessary party. ... 34. Pending receipt of instructions from the Vatican to the Bishop to direct him to institute an appropriate action in the Federal or State Courts or to voluntarily join in this action, it is absolutely vital to the existence of St. Peter's Church and to the preservation of the rights of the plaintiffs that immediate injunctive relief be granted."
It was undoubtedly for the reasons set forth in the foregoing averments that the court below presumed to grant the temporary injunction restraining the defendant Urban Redevelopment Authority of Pittsburgh from proceeding with the demolition of St. Peter's Roman Catholic Parish Church. The course presently being pursued by the ...