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TOWNSHIP SOUTH FAYETTE v. COMMONWEALTH PENNSYLVANIA ET AL. (06/21/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: June 21, 1979.

TOWNSHIP OF SOUTH FAYETTE, A MUNICIPAL CORPORATION, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA ET AL., RESPONDENTS

Appeal from the Orders of the Court of Common Pleas of Allegheny County in case of Township of South Fayette v. The Boys' Home, a Corporation, a/k/a The Boys' Industrial Home of Western Pennsylvania, and Center for Community Alternatives, a Corporation, and Center for the Assessment and Treatment of Youth, a Corporation, and the Commonwealth of Pennsylvania, No. G.D. 76-01384.

COUNSEL

Timothy P. O'Reilly, for petitioner.

Thomas F. Halloran, Assistant Attorney General, for respondents.

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

Author: Wilkinson

[ 43 Pa. Commw. Page 468]

This case is before us after the Supreme Court vacated our preliminary injunction which granted the prayer of the Township to preliminarily enjoin the Commonwealth from operating an intensive treatment unit for juveniles adjudicated delinquent on land owned by the Commonwealth within an area of the Township which was zoned to prohibit such a use. This preliminary injunction was granted on May 18, 1977 and by its terms was to continue until final disposition of the petition for injunctive relief or until further order of this Court. The facts and legal issues here involved are clearly set forth in the opinions of the Supreme Court. Township of South Fayette v. Commonwealth, 477 Pa. 574, 385 A.2d 344 (1978).

The case was listed for argument in its present posture to determine the proper procedure for ultimate disposition. A reading of the opinions in Township of South Fayette, supra, leaves no doubt that the Supreme Court contemplated a hearing would be held by this Court to develop further the facts. Thereafter this Court would address the question of the Commonwealth's right to operate this facility outside the requirements of the zoning ordinances.

The arguments of the Commonwealth for the dismissal of the Petition, without a hearing, if accepted, would only delay the ultimate disposition of this important matter.

Inasmuch as over two years have passed since the filing of this Petition and the parties have had occasion to argue this case twice before this Court and once before the Supreme Court, it seems appropriate to grant the Township of South Fayette 30 days from the date hereof to file an Amended Petition seeking only a permanent injunction. Thereafter the case will take its normal course.

[ 43 Pa. Commw. Page 469]

Accordingly, we will enter the following

Order

And Now, June 21, 1979, the Township of South Fayette shall have 30 days from the date hereof to file an Amended Petition seeking a permanent injunction. Thereafter the case shall take its normal course.

Disposition

Time granted to file amended petition.

19790621

© 1998 VersusLaw Inc.



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