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JEAN M. KING v. COMMONWEALTH PENNSYLVANIA AND JAMES B. WILSON (03/20/79)

decided: March 20, 1979.

JEAN M. KING, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA AND JAMES B. WILSON, SECRETARY OF TRANSPORTATION ET AL., RESPONDENTS



Original jurisdiction in case of Jean M. King v. Commonwealth of Pennsylvania and James B. Wilson, Secretary of Transportation et al.

COUNSEL

David C. Harrison, for petitioner.

Stuart M. Bliwas and Reese A. Davis, with them Harry J. Bradley and Eugene H. Evans, for respondents.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers, Blatt, DiSalle and Craig. Judges Mencer and MacPhail did not participate. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 41 Pa. Commw. Page 330]

Plaintiff Jean M. King leases residential property from the Commonwealth, Pennsylvania Department of Transportation (Department), under a month-to-month lease in an area designated for future highway construction. On December 13, 1977 the Department notified plaintiff that her existing lease was being cancelled and that she was thereby being offered a new lease with an increased rental prorating payments in lieu of taxes required by Section 2002(c) and (d) of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, added by the Act of March 13, 1974, P.L. 194, as amended, 71 P.S. § 512(c) and (d) (Act) pursuant to an agreement between the Department and local political subdivisions who are the designated beneficiaries of the payments under the Act.

Plaintiff thereupon filed a class action complaint in equity in this Court which alleges substantially as follows: (1) that the Act violates the uniformity clause of Article 8, Section 1 of the Pennsylvania Constitution in creating a de facto tax on a leasehold interest; (2) that the Act creates an arbitrary classification

[ 41 Pa. Commw. Page 331]

    of Commonwealth tenants who are subject to payments in lieu of taxes in violation of the due process and equal protection clauses of the fourteenth amendment of the United States Constitution; and (3) that enforcement of the Act violates the federal Civil Rights Act,*fn1 the Federal Aid Highways Act,*fn2 the Act itself and The General County Assessment Law.*fn3 To this complaint, the defendant Secretary of Transportation (hereafter the Secretary) filed preliminary objections in the nature of a demurrer for failure to state a cause of action for which relief can be granted and defendant Radnor Township School District filed a counterclaim seeking judgments for payments due under the Act to which the plaintiff has filed preliminary objections also in the nature of a demurrer. We have determined the complaint must be dismissed.

It is our view that the plaintiff's complaint fails to state a cause of action within equity's jurisdiction. In order to confer equity jurisdiction in a challenge to a statute, the plaintiff must allege the existence of a substantial question of constitutionality and the absence of an adequate remedy at law. Rochester & Pittsburgh Coal Co. v. Indiana County Board of Assessment and Revision of Taxes, 438 Pa. 506, 266 A.2d 78 (1970); Vance v. Kassab, 15 Pa. Commonwealth Ct. 328, 325 A.2d 924 (1974).

It is clear that plaintiff's constitutional attacks and the Civil Rights Act allegation which is premised upon a constitutional violation must fall in light of this Court's decision in Radnor Township School District v. Betty, 30 Pa. Commonwealth Ct. 425, 373 A.2d 1361 (1977) wherein this Court expressly rejected each of the constitutional violations alleged here in sustaining

[ 41 Pa. Commw. Page 332]

    judgments against several members of the class plaintiff purports to represent. Plaintiff's argument that the issue that lessees subject to the Act are treated differently than other Commonwealth lessees was not considered by the Court in Betty, supra, is without merit. Betty clearly held that Commonwealth lessees who rent real property held for highway construction purposes may properly be treated ...


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