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decided: December 28, 1973.


Appeal from the Order of the Court of Common Pleas of Adams Court in case of Bernard B. Martin, Thomas O. Oyler, Sr., and Olmer Spence, citizens, residents and taxpayers of the County of Adams, Pennsylvania, in their own right and on behalf of all other taxpayers of the County of Adams, Pennsylvania, v. Adams County Area Vocational-Technical School Authority, Bermudian Springs School District, Conewago Valley School District, Fairfield Area School District, Gettysburg Area School District, Littlestown School District and Upper Adams School District, No. 5 May Term, 1973.


Stephen E. Patterson, with him Ullman & Painter, for appellants.

Eugene R. Hartman, for appellees.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Wilkinson. Judges Crumlish and Mencer concur in the result only.

Author: Wilkinson

[ 11 Pa. Commw. Page 293]

On April 23, 1973, plaintiffs-appellants brought this action in equity to enjoin defendants-appellees from proceeding with the construction of an area vocational-technical school on a 24.775 acre tract of land purchased by appellees from Adams County for a purchase price of $100,000,00. The estimated project cost was alleged to be $3,620.000.

We summarize the reasons alleged by appellants in the complaint, as amended, to support their claim that the court should exercise its extraordinary powers to perpetually enjoin appellees from using the site they selected:

(1) No feasibility study has been made, including a traffic study;

(2) Other and more desirable land is available at a lesser price;

[ 11 Pa. Commw. Page 294]

(3) Other available sites are more accessible;

(4) Cost of sewerage facilities and services would be less on other sites;

(5) Construction costs would be less on other sites;

(6) The 24.775 acre tract is too small, and there is no additional land available for expansion at the proposed site;

(7) The Advisory Council on Historic Preservation may comment adversely on this site and jeopardize $473,000.00 in federal grants;

(8) The project was being pressed to avoid the necessity of a public hearing in the event the then proposed "Taj Mahal" bill was adopted by the General Assembly;

(9) If appellees are enjoined, no loss would be suffered in that the agreement with the County of Adams, grantor, provides that if the land is not used for school purposes, it will revert and the $100,000 will be refunded;

(10) The investigation of the suitability of the site was improperly delegated to a joint operating committee of the Area Vocational-Technical School Board rather than performed by the full Board;

(11) All actions taken since December 1971 by the joint operating committee are a nullity since it has not properly organized and elected officers according to Article XVIII of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as amended, 24 P.S. ยง 18-1850.3(d).

We have summarized the alleged basis of appellants' complaints in such detail because the lower court has sustained a preliminary objection by appellees that the appellants are guilty of laches in delaying from March 7, 1972, the date the option to purchase was obtained, until April 23, 1973, when the complaint was filed. We must affirm.

[ 11 Pa. Commw. Page 295]

We would make three observations at the outset. First, unlike most actions to enjoin construction of schools with which the courts have dealt recently, this one does not allege that existing facilities could be enlarged or redesigned to accommodate the need and make new construction unnecessary. Second, it is not alleged that the design of the facilities is ornate and disproportionate to the needed costs. Third, although the entire case is predicated on the site selection, it is not alleged that the site selected is not suitable. At best, the allegations are that others may be more suitable. In this regard, it seems certain that the sale could not be to the personal financial advantage of any of the parties involved, inasmuch as it is a purchase by the school authorities from the county.

The able opinion of Judge MacPhail of the court below accurately summarized the law of laches as it relates to this case as follows: "Laches bar relief in equity whenever in the chancellor's discretion a party has by his delay disentitled himself to the unusual remedies equity affords to those who desire them. Grange National Bank v. First National Bank of Bradford, 330 Pa. 1 (1938). In equity, laches may be raised in the pleadings by preliminary objections, answer or reply (Pa. R.C.P. 1509); but even where laches is not pleaded at all as a defense, the Court may, in its discretion, and on its own motion grant relief where the fact of laches appears in the evidence or on the face of the bill. Grange National Bank v. First National Bank of Bradford, supra. Where laches is raised by preliminary objection, if the fact of laches appears on the face of the pleadings, relief may be denied on this ground. Gabster v. Mesaros, 422 Pa. 116 (1966). Unless the delay in asserting the claim is grossly unreasonable, laches may be successfully asserted only where there is a delay and injury or material prejudice has resulted to the defendant because of the delay (Gabster v. Mesaros, supra),

[ 11 Pa. Commw. Page 296]

    or where the defendant during the delay is exposed to a risk of loss. Dohnert's Appeal, 64 Pa. 311 (1870)."

There is no doubt in our minds that the lower court was justified in selecting March 7, 1972, the date the option to purchase was secured, as the date when the facts now relied upon by the appellants were known or should have been known by them, and their action could have been or should have been brought at that time. The delay here represents approximately 13 months during which the appellees were not only expending money based on this site selection, but equally wasteful would be the delay in now reconsidering all these decisions in a full equity proceeding.

The appellants have pressed the point that since this matter was on preliminary objections, the lower court was limited to considering only facts alleged in the amended complaint, whereas the court took into account matters developed in a hearing held by the court to determine what bond would be required of the appellants if the action were permitted to proceed. We feel the court was entitled to consider the entire record which was before it. Forsht v. State Board of Education, 86 Dauph. 77 (1966). (A well-reasoned opinion by Judge Lipsitt, writing for the Dauphin County Court of Common Pleas, then sitting as the Commonwealth Court.) The principal cases relied upon by the appellants on this point are Stahl v. First Pennsylvania Banking and Trust Company, 411 Pa. 121, 191 A.2d 386 (1963), and Detweiler v. Hatfield Borough School District, 376 Pa. 555, 104 A.2d 110 (1954). Neither of these cases supports the proposition and, indeed, each could be properly cited contra, for in both cases the preliminary objections were sustained. Another case relied upon by appellants is Muia v. Fazzini, 416 Pa. 377, 205 A.2d 856 (1965). In that case, the Supreme Court reversed the lower court which had dismissed a complaint because of laches and had relied on matters

[ 11 Pa. Commw. Page 297]

    not in the pleadings or in the record, using language which would cover this case and sustain our holdings: ". . . However, in order to make this determination it was necessary for the court below to consider factual matters neither averred in the complaint nor disclosed in any other part of the record." (Emphasis added.) Therefore, the lower court acted properly when it considered the entire record, including that developed at the hearing concerning the bond.


Judges Crumlish and Mencer concur in the result only.




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