Appeal from decree of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1969, No. 2949, in case of The Ellis School v. A. M. Crawford et al.
Judd N. Poffinberger, Jr., with him Michael C. McLean, and Kirkpatrick, Lockhart, Johnson & Hutchison, for appellant.
Donald J. Lee, with him Edward M. Larkin, and Dougherty, Larrimer, Lee & Hickton, for appellees.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Pomeroy took no part in the consideration or decision of this case. Dissenting Opinion by Mr. Justice Cohen.
The Ellis School, a private educational institution, is located on a former estate in a predominantly residential area of Pittsburgh, Pennsylvania. Automotive access to the property was provided by two driveways, both of which can be reached only from a heavily traveled street. In 1969 the school decided to improve the traffic flow in and out of its property and undertook to construct a third driveway which would lead to Kentucky Avenue, a residential street which had heretofore come to a dead end at the school's property line. The residents of Kentucky Avenue, upset by the thought of having increased traffic on their quiet little street, opposed construction of the driveway, and, after its completion, continually parked their automobiles along Kentucky Avenue in such a way as to make access to the driveway impossible.
This action in equity was brought by the Ellis School to enjoin the residents of Kentucky Avenue from blocking the driveway. The trial court held a preliminary hearing but took no testimony on the merits of the case and refused to issue an injunction, apparently reasoning that since the case involved a possible zoning problem it should be handled only by the appropriate administrative authorities. We disagree.
At the time of the hearing and decree of October 17, 1969, the propriety of the driveway's construction was before the zoning authorities only in the form of a petition filed by the defendants in the equity action.*fn* We do not believe that the defendants could deprive the equity court of its jurisdiction by simply attempting to institute proceedings before the zoning authorities. At
the time of the hearing, the Ellis School had not sought to proceed under the allegedly applicable zoning laws and had not been cited by the zoning authorities. They were therefore not confined to the administrative process and it was erroneous, on this record, to dismiss the complaint without holding a hearing on the merits.
Decree vacated and case remanded for further consistent proceedings.