Appeal from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1965, No. 4724, in case of Boslover Ahavas Achim Belzer Association v. Redevelopment Authority of City of Philadelphia.
Edward L. Snitzer, with him Mesirov, Gelman, Jaffe & Levin, for appellant.
Frank B. Murdoch, with him Milton C. Sharp, and Schnader, Harrison, Segal & Lewis, for Redevelopment Authority, appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Dissenting Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell joins in this dissenting opinion.
Boslover Ahavas Achim Belzer Association (Boslover) is a nonprofit corporation which has been operating in the City of Philadelphia since 1898. It has an active membership of 1,000, most of whom are over 65 years of age, and was incorporated for the purpose of fostering and promoting American-Jewish culture, the ideas of American democracy, and the improvement and enrichment of the social life of its members. For 45 of the 68 years of its existence, it has owned and maintained a four-story building located at 701 Pine Street, Philadelphia. It has used this building for meetings of its members and has also rented the meeting rooms for various other social, beneficial, charitable and union organizations. This rental was without regard to race, creed, color or national origin, and from this, Boslover received approximately $10,000 per year.
On December 1, 1961, the Redevelopment Authority of the City of Philadelphia (Authority) prepared an Urban Renewal Plan for the Washington Square East Urban Renewal Area, and, on August 22 of 1962, submitted
a proposal to City Council, which proposal was approved on May 6, 1963. This proposed plan included reference to the continued occupancy by the appellant of premises at 701 Pine Street, listing this property as one of the several properties which might be exempted from acquisition when agreements were entered into between the owners of such properties and the Authority, providing for rehabilitation to meet specific requirements for such situations.
On May 16, 1963, the Authority advised appellant that it had reached a decision in regard to 701 Pine Street, stating, in essence, that it could remain and be rehabilitated for its present use, and that the Authority was currently developing further rehabilitation requirements for the property and would be in further contact with appellant in the near future regarding the execution of a rehabilitation agreement.
On October 5, 1964, the Authority tendered to appellant a rehabilitation agreement which provided, in Paragraph 19, that: "The Owner agrees that the uses permitted on subject premises will be restricted to functions sponsored by or on behalf of duly elected members of the Boslover Association. The Owner further agrees that subject premises will not be used, leased or rented to nonmembers of the Association or for meetings, gatherings, parties, dances or functions at which nonmembers will be present."
Prior to receiving this proposed rehabilitation agreement, the appellant had expended some $28,000 in improvements and repairs to its premises at 701 Pine Street, and states that without this approximate $10,000 which it receives in yearly rental, it would be unable to pay for the operating expenses of the premises, as it had done in the past. Boslover agreed to the rehabilitation agreement presented to it by the Authority, with the exception of the aforementioned Paragraph 19.
On February 14, 1966, Boslover instituted an action in mandamus, seeking to require the Authority to enter into the rehabilitation agreement, with the omission of paragraph 19. On March 11, 1966, the Authority filed preliminary objections to the complaint in mandamus in the form of a demurrer, lack of jurisdiction, motion to strike, and a motion for more specific pleading. On May 23, 1966, the court below dismissed appellant's complaint in mandamus. This appeal followed.
Appellant, in its brief, sets out the following Statement of Question Involved: "When a redevelopment authority, by ordinance of City Council was required to, and did, prepare and tender a rehabilitation contract to a property owner, which agreement, contrary to said ordinance, contained an arbitrary and unlawful clause prohibiting certain classes of persons from using said private property for a permitted and lawful use, and where the property owner, upon execution of a lawful rehabilitation contract, will receive certain benefits, and avoid irreparable harm, including condemnation, will mandamus lie to require the redevelopment authority to execute such lawful rehabilitation contract without its arbitrary and unlawful clause?"
As we said in Travis v. Teter, 370 Pa. 326, 330, 87 A.2d 177 (1952): "Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy: Borough of Easton v. Lehigh Water, 97 Pa. 554, 560; Goodman v. Meade, 162 Pa. Superior Ct. 587, 60 A.2d 577." (Emphasis in original). Assuming, arguendo, that appellant's contention is correct, that a contract was entered into by the letter of May 16, 1963, we agree with the conclusion reached by the court below that: ". . . said letter creates no 'clear legal right' in the plaintiff, nor any 'corresponding duty in the defendant,'
as the terms of that 'contract' were not plainly set forth therein" and that mandamus can never be invoked in a doubtful case. Homan v. Mackey, 295 Pa. 82, 86, 144 A. 897 (1929).
Appellant's position, in essence, is that, in reliance upon certain representations made to it by appellee, it acted to its detriment and is therefore entitled to relief. This may well be, in the proper forum and by a proper cause of action. We hold, only, that the record in this case does not establish a clear, legal right in appellant to have a contract ...