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SCHWARTZ v. URBAN REDEVELOPMENT AUTHORITY PITTSBURGH. SHAPERO (01/12/65)

decided: January 12, 1965.

SCHWARTZ, APPELLANT,
v.
URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH. SHAPERO, APPELLANT, V. URBAN REDEVELOPMENT AUTHORITY OF PITTSBURGH



Appeals 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. The Urban Redevelopment Authority of Pittsburgh and City of Pittsburgh; Leo B. Shapero v. Same.

COUNSEL

Harold Gondelman, for appellants.

Theodore L. Hazlett, Jr., with him Mead Mulvihill, Jr., Assistant City Solicitor, and David W. Craig, City Solicitor, for authority and City of Pittsburgh, appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Roberts dissents.

Author: O'brien

[ 416 Pa. Page 505]

The instant appeals are before us on appeal from the final decrees entered below in these companion actions in equity. The litigation has been here before, Schwartz v. Urban Redev. Auth., 411 Pa. 530, 192 A.2d 371 (1963), but in an entirely different posture. When we first reviewed this litigation, the chancellor had entered judgments of compulsory non-suit, at the close of plaintiffs' case, and we heard appeals from the refusal of the court en banc to take off the nonsuits

[ 416 Pa. Page 506]

    entered. On that occasion, this closely divided court held that the nonsuits were improperly entered and remanded the cases for new trial.

The new trials ordered by us have taken place, and the chancellor has made findings of fact and conclusions of law and entered a decree nisi, denying the relief prayed for in appellants' complaints. Exceptions were filed to the chancellor's adjudication and argued before a court en banc, which affirmed the chancellor's findings and conclusions and adopted his decree nisi as the final decree;*fn* these appeals followed.

From the foregoing brief history of this litigation, it must be readily apparent that the standard of review which governs our deliberations in the instant appeal differs markedly from that which led to the result achieved in the former appeal. When this matter first appeared here, we were dealing with judgments of compulsory non-suit and held, merely, that the plaintiffs' evidence was sufficient to create a prima facie case, thereby precluding nonsuits. In so holding, we were bound by the rule 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); Weed v. Kerr, 416 Pa. 233, 205 A.2d 858 (1965).

The key question for decision at the first trial, as well as now, is whether the board of the Authority abused its discretion in rejecting appellant Schwartz' proposal to purchase a parcel in the Lower Hill Redevelopment Area for the erection of a motor hotel.

[ 416 Pa. Page 507]

In light of the standard of review applicable to the first appeal, we found that relief was possible and indicated that plaintiffs were entitled to an adjudication, after a new trial. In short, we held that the chancellor could reasonably infer the abuse of discretion requisite ...


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