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SCHUBACH v. DEPARTMENT PUBLIC WELFARE (03/03/72)

decided: March 3, 1972.

SCHUBACH, ET AL.
v.
DEPARTMENT OF PUBLIC WELFARE, ET AL. AND PINE HILL HOME, INC., ET AL., INTERVENOR



Original jurisdiction.

COUNSEL

J. Leon Rabben, for plaintiff.

Marx S. Leopold, General Counsel, with him J. Shane Creamer, Attorney General, for defendants.

Bernard J. Goodheart, with him Irvin Stander, for Intervenor.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Wilkinson. Dissenting Opinion by Judge Kramer. Judge Mencer joins in this dissenting opinion.

Author: Wilkinson

[ 4 Pa. Commw. Page 637]

This is an action in Equity to enjoin the granting of a license to operate a nursing home or revoke such license if issued. The fundamental question involved is the validity of the zoning where the nursing home will be operated. With either supreme confidence or reckless abandon the intervening defendants have constructed what is referred to as a Two Million Dollar nursing home while plaintiffs have contested the validity of the zoning. Pursuing their policy of construction during litigation, intervening defendants assert the home was 90% completed on October 9, 1970, when the Supreme Court of Pennsylvania declared the zoning invalid. See Schubach v. Zoning Board of Adjustment, 440 Pa. 249, 270 A.2d 397 (1970).

On December 8, 1970, plaintiffs commenced an action in Equity in the Court of Common Pleas of Philadelphia

[ 4 Pa. Commw. Page 638]

    to enjoin any further construction. On January 18, 1971, a new zoning ordinance was passed. The validity of this second ordinance then became and remains the central issue in the Common Pleas Equity action.

On January 29, 1971, the Supreme Court of Pennsylvania issued an order prohibiting the completion of construction and prohibiting the operation of the nursing home until after the termination of the litigation. On August 16, 1971, the Common Pleas Court entered a Decree Nisi ruling substantially in favor of intervening defendants, directing certain action to be taken by intervening defendants to prevent a nuisance, and stating that intervening defendants had been in violation of the Supreme Court's order. Both parties filed exceptions, the exceptions were argued, and at the time of the argument of this case, the Common Pleas Court en banc had not handed down a decision.

Following the Decree Nisi, the Department of Welfare notified the parties that it intended to act favorably upon the license application that was then pending. It was at that point that plaintiffs brought this action to enjoin the granting of the license. After the request for a preliminary injunction was denied by this Court, the Department granted the license.

The prudence of granting a license to do that which the Department had notice had been prohibited by the Supreme Court of Pennsylvania might well be questioned. Resolving all doubts in favor of the Department we take this to be its authority to the intervening defendants to operate if, as and ...


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