Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Grays Ferry Warehousing and Leasing Co. v. City of Philadelphia, Commonwealth of Pennsylvania, David J. Damiano, Commissioner of Streets, and Buckley and Company, Inc., No. 2469 March Term, 1973.
Edward Benoff, Assistant City Solicitor, with him Theodore H. Lunine, Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellant, City.
Louis J. Presenza, Special Assistant Attorney General, with him Robert W. Cunliffe, Deputy Attorney General, and Robert P. Kane, Attorney General, for appellant, Commonwealth.
LeRoy Comanor, for appellant, Buckley & Company, Inc.
Samuel P. Lavine, with him Carl T. Bogus, and Steinberg, Greenstein, Gorelick & Price, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer. Judge Crumlish, Jr. concurs in decision.
This is an appeal by the City of Philadelphia (City) from a final decree of the Court of Common Pleas of Philadelphia County dismissing the City's exceptions to its decree nisi and ordering that the City (1) be enjoined from using a certain cobblestone road located on the property of the Grays Ferry Warehousing and Leasing Company (appellee), (2) restore the cobblestone road to the condition it was in on December 31, 1972, and (3) pay damages to the appellee in the amount of $44,650.
This case began with the construction of the new Grays Ferry Avenue Bridge in Philadelphia. Since the bridge was to be built above the grade of the tracks of the Penn Central Company and the Philadelphia, Baltimore and Washington Railroad Company, the exclusive power to appropriate property for its construction was vested in the Pennsylvania Public Utility Commission (Commission) by virtue of Section 409 of the Public Utility Law.*fn1 The Commission exercised its power under this section on September 28, 1970, when, upon application of the City, it entered an order taking and appropriating two parcels of appellee's property which adjoined the construction site.
Construction began on the project on or about January 2, 1973. On March 16, 1973, the appellee filed a complaint in equity seeking relief against the City's use of a cobblestone road which, it was alleged, was the property of the appellee and had not been appropriated by the Commission's order of September 28, 1970. The appellee
also alleged that it owned a multistory commercial building located on its property adjoining the bridge site and that this building was occupied by tenants who required ingress and egress by and through the said cobblestone road. The appellee further alleged that, because of the City's actions and the actions of the City's contractor, Buckley & Company, Inc. (Buckley) and other subcontractors, the appellee and its tenants were deprived of the use of the cobblestone road.*fn2
The case was tried before the Honorable Leo Weinrott, who subsequently issued a decree nisi enjoining the City and Buckley from denying appellee full use and enjoyment of the cobblestone road, ordering the City to restore the cobblestone road to the condition it was in on December 31, 1972, and awarding damages to appellee against the City in the amount of $44,650. After the City's exceptions to the decree nisi were dismissed, a final decree was entered. The City has now appealed to us from this decree.
The City first argues that the lower court lacked equitable jurisdiction in this case because an adequate and exclusive remedy was provided by two statutes.*fn3 Although these two statutes clearly give the City the power to take property for the construction of bridges and provide a remedy for property owners whose lands have been appropriated, they are not applicable to situations like the present one since, as mentioned earlier in this ...