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DEVLIN v. OSSER (04/23/69)

decided: April 23, 1969.

DEVLIN, APPELLANT,
v.
OSSER



Appeal from decree of Court of Common Pleas of Philadelphia County, Aug. T., 1969, No. 36, in case of William J. Devlin v. Maurice S. Osser et al.

COUNSEL

Edward R. Becker, with him Edwin E. Naythons and William A. Meehan, for appellant.

Levy Anderson, First Deputy City Solicitor, with him Frank J. Pfizenmayer, Assistant City Solicitor, Matthew W. Bullock, Jr., Second Deputy City Solicitor, and Edward G. Bauer, Jr., City Solicitor, for appellees.

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

Author: O'brien

[ 434 Pa. Page 410]

This is an appeal from the order of the Court of Common Pleas of Philadelphia County, denying the injunction sought by appellant. On August 5, 1968, appellant, William J. Devlin, a citizen-taxpayer and also chairman of the Philadelphia City Republican Committee, filed a complaint in equity seeking to enjoin appellees, the Philadelphia City Commissioners, from conducting proposed in-plant field registration offices, including those within the plant of Rosenau Brothers, clothing manufacturers, and those in the busmen's rooms of nine Philadelphia Transportation Company depots. The gravamen of the complaint was that the registration would not be open and accessible to the public and was thus illegal. The answer filed by appellees indicated that the P.T.C. sites were cancelled; however, it admitted that registration was scheduled at Rosenau Brothers on August 16, 1968, and it was stipulated that other in-plant registrations were contemplated. A hearing was held before the Honorable Joseph Sloane sitting as Chancellor on August 12, 1968, and the proposed registration was delayed pending disposition of the litigation below. On August 21, 1968, the Chancellor issued a decree nisi denying the

[ 434 Pa. Page 411]

    injunction and two days later denied appellant's petition for supersedeas. The parties stipulated that the adjudication was to be treated as final, without right of exceptions. This appeal followed.

Two preliminary matters must be disposed of. First, although the registration has already been held at Rosenau Brothers, this appeal is not moot. It was alleged by appellant, and admitted by appellees, that future in-plant registrations were contemplated.

Second, appellees urge that equity has no "jurisdiction" over this matter because there is a statutory remedy at law. Appellees contend that appellant's sole remedy can be found in § 42 of The First Class City Permanent Registration Act, Act of March 30, 1937, P. L. 115, 25 P.S. § 623-1 et seq. We note that no preliminary objection was made below to the propriety of this case being heard in equity. In Carelli v. Lyter, 430 Pa. 543, 244 A.2d 6 (1968), we held that the objection that there exists an adequate non -statutory remedy at law is not truly jurisdictional, merely going to the form of action, and thus cannot be raised at any time, but rather is waived if not raised by preliminary objection. We need not consider at this time whether the same rule should apply where a statutory remedy at law is asserted, for the asserted statutory remedy in the instant case is neither adequate nor exclusive. The same contentions made by appellees were made by the same appellees in the trial court in a companion case, DeJoseph v. Osser, 434 Pa. 414, 254 A.2d 300 (1969), involving bus registration schedules. It was answered quite well in that court by Judge Spaeth, and we adopt the views stated there.

We thus turn to the merits. Appellant urges that in-plant registrations like that at Rosenau Brothers violate the mandate of The First Class City Registration

[ 434 Pa. Page 412]

Act, supra, in that they are not open to the public. Appellees dispute such a statement both on the law and on the facts. They claim that there is no requirement that all registration places be open to the public,*fn1 and that assuming that such a requirement does exist, the Rosenau Brothers' registration ...


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