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KURMAN v. PHILADELPHIA (01/12/65)

SUPREME COURT OF PENNSYLVANIA


decided: January 12, 1965.

KURMAN, APPELLANT,
v.
PHILADELPHIA

Appeal from decree of Court of Common Pleas No. 7 of Philadelphia County, June T., 1963, No. 2413, in case of Michael Kurman, Stella Kurman, and Michael Kurman, trading as Fox Chase Auto Body and Motor Repair, v. City of Philadelphia and Philadelphia Parking Authority.

COUNSEL

Joseph A. Malloy, Jr., with him Hamilton, Darmopray & Malloy, for appellants.

Matthew W. Bullock, Jr., Deputy City Solicitor, with him Gerald Gornish, Assistant City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ.

Author: Per Curiam

[ 416 Pa. Page 376]

Plaintiffs-appellants filed a complaint in equity seeking to restrain defendant City from interfering with certain alleged property rights; defendants preliminarily objected on the ground that plaintiffs failed to state a cause of action. The lower court sustained the position taken by the defendants and dismissed the

[ 416 Pa. Page 377]

    complaint, from which action plaintiffs appeal to our Court.*fn1

At oral argument, it was acknowledged that the purpose of the action instituted by plaintiffs was to have a determination made by the court in equity to establish whether or not plaintiffs had a perpetual right-of-way over land purchased by defendants from a third person, from which land plaintiffs have been excluded and for which they desire compensation.

Equity was not the proper forum to try such issues, because there is an appropriate statutory remedy which must be pursued. Schwab v. Pottstown Borough, 407 Pa. 531, 180 A.2d 921 (1962). So that plaintiffs should not be prejudiced by any prior judicial determination, in their pursuit of compensation before a board of view for the alleged seizure of property rights, the decree of the lower court is vacated without prejudice.

Decree vacated. Costs on appellants.

Disposition

Decree vacated.


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