Appeals, Nos. 19 and 20, March T., 1963, from decrees of Court of Common Pleas of Allegheny County, Oct. T., 1961, Nos. 844 and 845, in cases of Jerome J. Schwartz, trustee v. Urban Redevelopment Authority of Pittsburgh and City of Pittsburgh, and Leo B. Shapero v. Same. Decrees reversed; reargument refused July 26, 1963.
Harold Gondelman, for appellants.
Theodore L. Hazlett, Jr., with him William H. Mendlow, David W. Craig, and Mead Mulvihill, Jr., for appellee.
Before Bell, C.j., Musmanno, Cohen, Eagen and O'brien, JJ.
OPINION BY MR. JUSTICE O'BRIEN
These appeals involve two actions in equity, instituted by the respective appellants against the Urban Redevelopment Authority of Pittsburgh [Authority] and the City of Pittsburgh [City]. Appellant Schwartz, as trustee for a corporation to be formed, and appellant Shapero, in his own behalf as a taxpayer and in behalf of other taxpayers of the City, filed complaints in equity seeking: 1. to enjoin the Authority and the City "from taking any action to sell, grant, convey, lease, mortgage, encumber, pledge or in any manner dispose of or attempt to dispose of" a certain parcel of land in a redevelopment area to Bell Telephone Company or others; 2. to require the Authority to show cause why the parcel of land should not be conveyed to Schwartz; and 3. to compel the authority to accept Schwartz's proposal.
The two suits involved identical questions of fact and law and were consolidated for trial. At the conclusion of appellants' case, the chancellor granted appellees' motions for a compulsory non-suit. The court en banc refused appellants' motions to take off the judgments of non-suit, thereby giving rise to these appeals.
Rule 1512, Pa. R.C.P., provides for the entry of nonsuits in actions in equity as follows: "The court may
enter a non-suit against the plaintiff under the same circumstances, subject to review in the same manner and with the same effect as in actions at law." (Emphasis supplied). We are therefore guided by the principles that a non-suit should be entered only in a clear case, and, on appeal from the refusal to take off a compulsory non-suit, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of plaintiff. Miller v. McMinn's Industries, 410 Pa. 234, 188 A.2d 738 (1963), and cases cited therein.
From the pleadings and the evidence, the following facts appear to be uncontroverted: The Urban Redevelopment Authority of Pittsburgh, Pennsylvania, is a corporate body created under the provisions of the Urban Redevelopment Law of the Commonwealth of Pennsylvania, Act of May 24, 1945, P.L. 991, 35 P.S. § 1701 et seq., as amended. The City of Pittsburgh is a municipal corporation organized and existing under the laws of the Commonwealth of Pennsylvania and is an indispensable party to the proceedings by virtue of the provisions of the Urban Redevelopment Law, since it is required to approve the proposed sale, lease or transfer of any real property in a redevelopment area.
The Authority, by the exercise of the power of eminent domain, obtained title to and razed the area known as the Lower Hill Redevelopment Project, Redevelopment Area No. 3. After the construction of new streets and grades, sewers and utility lines, the Authority, in January, 1959, compiled and circulated to interested persons a booklet known as the "Land Disposition Documents" and invited proposals from the public for bids to purchase the tracts of land in the redevelopment project. ...