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BOGERT v. ALLENTOWN HOUSING AUTHORITY (06/29/67)

decided: June 29, 1967.

BOGERT, APPELLANT,
v.
ALLENTOWN HOUSING AUTHORITY



Appeal from decree of Court of Common Pleas of Lehigh County, Sept. T., 1964, No. 22, in case of LeRoy S. Bogert, Francis R. Balliet, Stephen Banko et al. v. The Allentown Housing Authority et al.

COUNSEL

Joseph L. Rosenfeld, for appellant.

James N. Diefenderfer, for appellees.

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

Author: Jones

[ 426 Pa. Page 153]

On December 8, 1964, seventy property owners and taxpayers of the City of Allentown, [plaintiffs], instituted an equity action against the Allentown Housing Authority,*fn1 [Authority], in the Court of Common Pleas of Lehigh County. The gravamen of their complaint, as drawn, was stated by the court below: "The complaint, containing eighteen prayers for relief, in essence centers around the proposed construction of public housing in the Sixteenth Ward of the City of Allentown. The relief sought may be classified as follows: (1) an injunction to restrain the defendants from further proceeding in regard to the proposed housing, (2) that the defendants be compelled to disclose the extent to which the plaintiffs and other residents of Allentown have become obligated by reason of the preliminary negotiations in regard to the proposed housing, (3) that an investigation be conducted to determine whether the plaintiffs and other residents of Allentown have been prejudiced, obligated or harmed by any action of the defendants and that they be compelled to disclose the amount of monies expended to facilitate preliminary negotiations, (4) that all conveyances to which the defendants have been a party be set aside, (5) that the defendants be restrained

[ 426 Pa. Page 154]

    from exercising the power of eminent domain and, (6) that the Court declare the Housing Authorities Act unconstitutional."*fn2 The Authority filed preliminary objections including a "motion for a more specific pleading", a pleading in the nature of a demurrer and a "petition raising defense of lack of capacity to sue".*fn3 The court below sustained that portion of the preliminary objections in the nature of a demurrer and dismissed the complaint. From that decree the instant appeal was taken.

The rationale of the court below was that (1) in the absence of any allegation of arbitrary or capricious acts or conduct on the part of the Authority, the action of the Authority would not be subject to judicial restraint, (2) relying on Blumenschein v. Pittsburgh Housing Authority, 379 Pa. 566, 109 A.2d 331 (1954),*fn4 the Authority was not under a duty to hold a public hearing and that, "even if official action had been taken by the Authority at a 'non-public' meeting such action would not be invalid" and, (3) inasmuch as the court was convinced that the plaintiffs in their complaint had "pleaded their best case", permission to file an amended complaint would be "fruitless".

Plaintiffs' complaint is obviously inartistically drawn and does not set forth a valid cause of action. To this extent we agree with the court below.

However, we believe that the court fell into error in denying to the plaintiffs an opportunity to amend their complaint. As argued in its brief and as evident during the oral argument, the Authority takes the

[ 426 Pa. Page 155]

    position that it is not subject to the provisions of the "Right to Know" statute of 1957, supra. In support of its position the Authority -- and the court below -- relies upon Blumenschein, supra, and the Housing Authorities Law, supra, § 10(y), 35 P.S. § 1550(y). Section 10(y) grants to the Authority the power, inter alia: "(y) To conduct examinations and investigations and to hear testimony and take proof, under oath or affirmation, at public or private hearings, on any matter material for its information." (Emphasis supplied). This Court, in passing upon the contention that the "Authority held no public or private hearings in connection with the selection of [a] site" and construing Section 10(y), in Blumenschein stated: "The power thus granted is not a mandate. There is no provision in the law as to the manner in which the Authority is to gather the information upon which to base its action, nor is there any constitutional or other legal requirement that a landowner be granted a hearing before a governmental agency vested with the right of eminent domain determines to take his land for a public use" (p. 574). Blumenschein is clearly distinguishable ...


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