decided: October 16, 1974.
G. C. MURPHY CO. ET AL., APPELLANTS,
Appeal from decree of Court of Common Pleas of Erie County, No. 52 of 1972, in case of G. C. Murphy Company, Darling Jewelry Company, S. A. Meyer Land Company, Isaac Baker & Son, Inc., Isaac Baker & Son Realty, Erie Sport Store and George J. Weber, Dwecks of Pa., Inc. and D & K Stores, Inc. v. Redevelopment Authority of the City of Erie, and the City of Erie.
John M. Wolford, with him MacDonald, Illig, Jones & Britton, for appellants.
John M. Quinn, with him James J. McDonald, Jr., James G. Hanes, City Solicitor, and Quinn, Gent, Buseck & Leemhuis, for appellees.
Will J. Schaaf and Marsh, Spaeder, Bauer, Spaeder & Schaff, for intervenors.
Jones, C. J., Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Nix and Mr. Justice Manderino concur in the result. Mr. Justice Roberts took no part in the decision of this case.
[ 458 Pa. Page 220]
Appellants, who are owners and lessees of properties fronting on State Street in the City of Erie, brought this action against the City of Erie and the Erie Redevelopment Authority to enjoin the creation of a four block "Transitway Mall" on State Street between Sixth and Tenth Streets. The chancellor denied the requested relief, and the court en banc dismissed appellants' exceptions to the decree nisi in a final decree. This appeal followed.*fn1
By a resolution of February 12, 1965, the Erie City Council adopted a redevelopment proposal submitted by
[ 458 Pa. Page 221]
the Redevelopment Authority of the City of Erie ("the Authority") for the downtown Erie business district. The proposal embraced a twelve block area, including portions of State Street, a major traffic artery which runs on a North-South axis through the core of the business district. As originally conceived, the proposal included a pedestrian mall on West Eighth Street between Peach Street and State Street. The location of the proposed mall was indicated on a land use map appended to an Urban Renewal Plan ("the Plan") prepared by the Authority and recorded in the office of the Recorder of Deeds of Erie County. This same map showed State Street as a hundred foot wide right-of-way.
By a resolution adopted February 22, 1967, City Council determined that Eighth Street would remain open to vehicular traffic between Peach Street and State Street. Shortly thereafter, on March 15, 1968, a revised version of the Plan was recorded in the office of the Recorder of Deeds. This version of the Plan retained a provision for a "Pedestrian Mall or Plaza" as a part of the proposal for the downtown area, but the precise location of the mall was not specified either in the revised Plan itself or in the accompanying land use map.
On April 8, 1970, following a comprehensive study of traffic flow in the downtown area, City Council adopted a resolution approving preliminary plans for a "Transitway Mall" on State Street. Final plans submitted by the Authority for the Transitway Mall were approved by a resolution of City Council on March 29, 1972. These plans call for a division of the hundred foot right-of-way of State Street into two broad sidewalk areas, embellished with benches, trees and planters, and bisected by a two lane roadway, twenty-eight feet in width. The plans envisage that traffic on the
[ 458 Pa. Page 222]
roadway will be restricted to buses, taxis, emergency vehicles and, during certain designated hours, service vehicles serving the establishments facing on the mall.
Appellants commenced this action on August 16, 1972 by filing a complaint in equity against the Redevelopment Authority and the City of Erie. A joint answer to the complaint was filed by the City and the Authority,*fn2 and the case was tried on its merits. As indicated above, the chancellor denied the requested relief, and the court en banc dismissed appellants' exceptions to the chancellor's decree nisi in a final decree entered August 3, 1973. In the meantime, on July 18, 1973, after the chancellor's decree nisi but before the final decree of the court en banc, City Council passed an ordinance authorizing construction of the Transitway Mall in accordance with the councilmanic resolution of March 29, 1972.*fn3
At the outset, appellees challenge the equitable jurisdiction of the court on the ground that appellants had an adequate and exclusive remedy at law, viz., an "appeal from the validity of the ordinance [authorizing the Transitway Mall] to the court of common pleas"
[ 458 Pa. Page 223]
under § 2920 of the Third Class City Code.*fn4 Under this section, an "appeal" challenging the validity of an ordinance must be taken within thirty days from the passage of the ordinance. Read in its statutory context, § 2920 appears to be designed to expedite necessary street repairs and prevent waste in the expenditure of public funds for street improvements by limiting the time within which objections may be raised to procedural defects in the enactment of ordinances for the improvement, alteration, or vacating of city streets. It is by no means clear that the legislature intended § 2920 to be the sole means by which a litigant may challenge the general power of a third class city to create a Transitway Mall. But we need not decide whether § 2920 provides the exclusive statutory procedure for cases of this sort, precluding an action for an injunction or other equitable relief, see West Homestead Borough School District v. Allegheny County Board of School Directors, 440 Pa. 113, 269 A.2d 904 (1970), for even were we to assume this to be so, it would not follow that the appeal should be dismissed.
As we indicated above, this action was commenced and the chancellor's decree was entered before the ordinance of July 18, 1973 was passed. Appellees did not object in the court below that the action was prematurely brought, and the objection to equity jurisdiction was raised for the first time on appeal. To dismiss the case now would be be an affront to justice if the result would be to preclude appellants from proceeding under § 2920 because the statutory thirty day period for challenging the ordinance has expired. On the other hand, were we to vacate the decree below and direct a transfer to the law side of the court, thus in effect tolling the statutory time limitation, the ensuing retrial of the case would
[ 458 Pa. Page 224]
be an expensive and time-consuming duplication of the proceedings before the chancellor. The parties are in substantial agreement as to the facts of the case, and the questions raised by appellants would inevitably come before us again on a second appeal. In light of these considerations, we decline either to order the case dismissed or to remand it for transfer to the law side of the court.
The main substantive issue before us is a narrow one: Is it within the powers delegated to the City Council of the City of Erie to alter the character of State Street, a public thoroughfare, in accordance with the proposal adopted by the Transitway Mall resolution of March 29, 1972? Erie is a city of the third class, and the police powers delegated by the state legislature to cities of this class are enumerated in the Third Class City Code.*fn5 These powers include general authority to "make and adopt all such ordinances, by-laws, rules and regulations, not inconsistent with or restrained by the Constitution and laws of this Commonwealth, as may be expedient or necessary for . . . the maintenance of the peace, good government, safety and welfare of the city, and its trade, commerce and manufactures".*fn6 More specifically, third class cities, "with or without any petition of property owners, may open, widen, straighten, alter, extend and improve . . . any street, or any part thereof, . . . or may vacate and discontinue the same whenever deemed expedient for the public good".*fn7 The Code further provides that cities of this class may "improve any street, or part thereof, and the sidewalks thereof when included as part of the improvement . . . [and] may also provide for the improvement of any
[ 458 Pa. Page 225]
highway, or street, or any sections or parts thereof, in length, in the space between the curb, gutter, or actual carriageway line and the property line, either by an original work or an improvement thereon, or by a change, repair, renewal, or alteration in the said street or curb, or in parking spaces, or shade trees, or by changing, altering, renewing, replanting, pruning, or otherwise improving the same, in any or all of said particulars".*fn8 We have no doubt that the broad grant of powers over streets and sidewalks in these statutory provisions includes the power to make the physical alterations in State Street contemplated by the City Council and the Authority.
With respect to the regulation of traffic on the roadway of the mall, we find a similarly broad grant of power to cities and other political subdivisions in § 1103 (a) of the The Vehicle Code.*fn9 This section provides that "local authorities . . . may regulate the kinds and classes of traffic and its turning on certain highways at all or certain hours".
Appellants contend that, even if the City Council is legally empowered to create the Transitway Mall, the proposed alteration of State Street will constitute a de facto vacation of the street, entitling abutting property owners to damages from the city. We need not pass on this contention, for even if it has merit, appellants are not entitled to injunctive relief. See Schwab v. Pottstown Borough, 407 Pa. 531, 180 A.2d 921 (1962). If construction of the mall will result in compensable injury to property of appellants, they have an adequate statutory remedy under the Eminent Domain Code.*fn10
[ 458 Pa. Page 226]
One of the appellants, George J. Weber, advances an alternative theory of relief predicated on his status as a purchaser of land from the Authority. The Authority sold land abutting on State Street in the area of the downtown urban renewal project to Weber and his wife on October 16, 1968. By the terms of a "Land Disposition Agreement" entered into by the parties, the Webers promised to develop the land in accordance with the Authority's modified Urban Renewal Plan, recorded in the office of the Recorder of Deeds. Weber points to a paragraph of the Plan which provides that "[t]his Urban Renewal Plan may be modified from time to time upon compliance with the same requirements of law governing for [sic] its initial adoption, including approval of such modification by the local governing body, provided that with respect to any land in the project area previously disposed of by the Authority for use in accordance with the Urban Renewal Plan, the Authority receives the written consent of the then owner of such land whose interests therein are materially affected by such modification ". [Emphasis supplied.] He contends that the creation of the Transitway Mall is a modification of the Plan, and the failure to obtain his written consent to this modification entitles him to injunctive relief. There are three answers to this contention.
First, although the recorded Plan provides for a "Pedestrian Mall or Plaza" with "pedestrian walkways and vehicular access" in "a public area", the exact location of the mall is not specified in the Plan or in the accompanying land use map, and no provision of the Plan excludes State Street as a possible location for the mall. The choice of State Street as the site for the mall is not a "modification" of the Plan.
[ 458 Pa. Page 227]
Decree affirmed. Each party to bear own costs.