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HARRIS-WALSH v. DICKSON CITY BOROUGH (01/17/66)

decided: January 17, 1966.

HARRIS-WALSH, INC.
v.
DICKSON CITY BOROUGH, APPELLANT



Appeal from decree of Court of Common Pleas of Lackawanna County, March T., 1964, No. 1, in case of Harris-Walsh, Inc., Parmoff Corporation and Moffat Coal Company v. Borough of Dickson City.

COUNSEL

John E. V. Pieski, for appellant.

Morey M. Myers, with him Gelb, Carey & Myers, for appellee.

William J. Oliver, with him Oliver, Price and Rhodes, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Mr. Chief Justice Bell and Mr. Justice Roberts concur in the result. Concurring Opinion by Mr. Justice Cohen.

Author: Jones

[ 420 Pa. Page 262]

This appeal involves a challenge, successful in the court below, to the validity of a borough ordinance which seeks to regulate, within the territorial limits of the borough, the future mining of anthracite coal by the strip mine method.

Since 1950, Harris-Walsh, Inc. (Harris-Walsh), has been engaged in the removal of anthracite coal*fn1 by strip mining within the limits of the Borough of Dickson City (Borough), Lackawanna County. On June 28, 1963, the Borough adopted an ordinance, later amended on December 17, 1963, regulating future strip mining operations within the Borough limits. In accordance with the provisions of § 5 of this ordinance, the Borough, by resolution on February 10, 1964, required that Harris-Walsh furnish a bond in the amount of $80,666 on or before February 17, 1964.*fn2

On February 18, 1964, Harris-Walsh, averring that the ordinance was "illegal, unlawful and unconstitutional" for seventeen stated reasons and that it had been advised that, if the required bond was not posted,

[ 420 Pa. Page 263]

    the Borough would invoke the ordinance-provided criminal penalties, instituted an equity action in the Court of Common Pleas of Lackawanna County against the Borough and requested a preliminary injunction. The court preliminarily restrained the Borough from enforcing the ordinance against Harris-Walsh. Thereafter, various hearings were held and, on October 5, 1964, the court entered a decree nisi which held the ordinance invalid and permanently enjoined the Borough from its enforcement. Thereafter, the Commonwealth of Pennsylvania was permitted to intervene.*fn3 On March 10, 1965, the court dismissed exceptions to its decree nisi and entered a final decree from which the Borough now appeals.

Initially, we must consider whether the court below, sitting as a court of equity, had jurisdiction to entertain this action to restrain the enforcement of this ordinance. Although none of the parties to this action question equity's jurisdiction -- in fact, the parties agree equity has jurisdiction -- nevertheless, it is our duty to inquire into the existence of jurisdiction. We have recently said: "Jurisdiction can be raised at any time, even at the appellate level and by the appellate court itself : [citing authorities]": (Emphasis supplied) Balazick v. Dunkard-Bobtown Municipal Authority, 414 Pa. 182, 185, 199 A.2d 430.

If at law there exists a remedy, complete and adequate in nature, equity will not assume jurisdiction; absent such a remedy, equity may act. A remedy at law may be provided under the statute or the ordinance the validity of which is attacked, but, unless such statute or ordinance provides a remedy adequate "to the task of resolving plaintiffs' objections," the mere existence of such remedy will not preclude the assumption

[ 420 Pa. Page 264]

    of equitable jurisdiction: Bliss Excavating Co. v. Luzerne County, 418 Pa. 446, 451, 211 A.2d 532.

In the case at bar, does an adequate remedy at law exist? The only section of this ordinance which might be construed as remedy-providing is § 8 which provides criminal penalties*fn4 for violation of the ordinance but such remedy, which would require subjection to a criminal prosecution, is not of such adequacy as to oust equity of jurisdiction.*fn5 No other ...


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