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SHIELDS v. PHILADELPHIA. (01/02/62)

January 2, 1962

SHIELDS, APPELLANT,
v.
PHILADELPHIA.



Appeals, Nos. 461, 462 and 463, Jan. T., 1961, from decree of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1960, No. 45, in equity, in case of Helen M. Shields et al. v. City of Philadelphia et al. Decree affirmed; reargument refused January 16, 1962.

COUNSEL

Frank Rogers Donahue, Jr., with him Francis Shunk Brown, 3rd, for appellants.

James L. Stern, Deputy City Solicitor, with him Ellis A. Horwitz and Matthew W. Bullock, Jr., Assistant City Solicitors, Joseph V. Furlong, Jr., Deputy City Solicitor, and David Berger, City Solicitor, for City of Philadelphia, appellee.

William C. Ferguson, Jr., for Germantown Boys' Club, appellee.

Before Bell, C.j., Jones, Cohen, Eagen and Alpern, JJ.

Author: Cohen

[ 405 Pa. Page 602]

OPINION BY MR. JUSTICE COHEN.

Anna Hazen died in 1936. Her last will and testament offered a certain piece of real estate to the City of Philadelphia (City) "for a public park, on condition that no buildings shall be erected thereon other than those required for the comfort of the people, and also that the garden and trees shall be preserved as far as possible...." The City accepted the land, now known as Howell Park, and the deed was duly recorded.

Numerous surveys and studies had been made by the City to determine the best use to which the park could be devoted. Its small size, inaccessability and remoteness detracted from its development as a garden type park. In 1961, after further study and consultation with the residents in the area, the City concluded that the playing of Little League baseball was the best and most effective use which could be made of the area and that no other use for public park purposes was practical. The City then appropriated a sum of money for the construction of a Little League baseball field at Howell Park.

Appellants, residents of the immediate vicinity, brought a bill in equity as taxpayers seeking an injunction against the City, the Department of Recreation and the Germantown Boys' Club which was to supervise the proposed field praying that the proposed use be restrained. The chancellor dismissed the plaintiff's bill. The court en banc dismissed appellants' exceptions and entered a final decree in favor of the defendants.

Although there is some question in our minds as to whether the appellants have standing to bring this taxpayers' suit attacking the use by the City of the property in question, and to seek enforcement of the provisions of the Howell will, we shall not decide the appeal on either of these bases since our court, by the present procedure, has previously entertained appeals

[ 405 Pa. Page 603]

    raising similar questions. Bernstein v. Pittsburgh, 366 Pa. ...


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