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E. JEROME BROSE v. EASTON PARKING AUTHORITY AND CITY EASTON (07/03/79)

decided: July 3, 1979.

E. JEROME BROSE, FRANK A. POSWISTILO AND KARL K. LABARR, JR., APPELLANTS
v.
EASTON PARKING AUTHORITY AND THE CITY OF EASTON, APPELLEES



Appeal from the Order of the Court of Common Pleas of Northampton County in case of E. Jerome Brose, Frank S. Poswistilo and Karl K. LaBarr, Jr. v. Easton Parking Authority and the City of Easton, No. 11 April Term, 1977.

COUNSEL

Thomas R. Elliott, with him E. Jerome Brose, and Brose, Poswistilo & Kreglow, for appellants.

Robert A. Freedberg, Assistant City Solicitor, City of Easton, for appellees.

Judges Blatt, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 44 Pa. Commw. Page 25]

Appellants E. Jerome Brose, Frank Poswistilo, and Karl K. LaBarr, Jr. appeal to this Court from a decision of the Court of Common Pleas of Northampton County sitting in Equity refusing to remove a non-suit entered against them. The only issue raised by Appellants is whether the City of Easton (City) has the power to construct commercial retail and office space and lease the same to private users. The Chancellor held that the City did have such power. The Chancellor erred in deciding this issue because it had been waived by Appellants. Nevertheless, we affirm the Chancellor's order on the basis of that waiver.

On July 3, 1972, the Easton City Council enacted an ordinance authorizing and approving a lease agreement between the City and the Easton Parking Authority (Authority) providing that the City would lease a public parking facility constructed and owned by the Authority for a period of 32 years at an annual

[ 44 Pa. Commw. Page 26]

    rent of $225,000.00. The purpose of the lease was to guarantee principal and interest payments on revenue bonds sold by the Authority to pay for the facility's construction. The City desires to convert approximately 13,000 square feet of the parking facility to commercial retail and office space and to rent it to private individuals and businesses at a minimum rate of $4.13 per square foot.

Appellants objected to the City's plans and filed suit asking the Court (1) to enjoin the City and the Authority from spending any money in converting the parking space to commercial space or from renting or leasing such space "until the reasonableness of the rates proposed to be charged be judicially determined pursuant to 53 P.S. [ยง ]345(8)"*fn1 and (2) to determine "the reasonableness of the rental rates proposed to be charged" by the City and the Authority. A hearing was held on Appellants' complaint. At no point in the complaint*fn2 or during the hearing did Appellants even attempt to challenge the authority of the City to construct and lease the proposed commercial property. Their sole challenge was to the reasonableness of the proposed rates. At the close of Appellants' evidence, the City and the Authority moved for a non-suit. The Court ordered the filing of briefs and the holding of oral argument on the question of entering a non-suit. In their brief, Appellants for the first time argued that the proposed construction and leasing plans were ultra vires acts and, therefore, invalid. The Chancellor, while noting that Appellants "might well . . . have waived this issue" ruled on the issue and held the proposed acts to be valid. Following the Chancellor's decision

[ 44 Pa. Commw. Page 27]

    and his denial of Appellants' motion to take off the non-suit, Appellants brought this appeal, again questioning the ultra vires nature of the proposed acts.

"The general rule is well settled that questions not properly raised in the court below will not be considered . . . on appeal." (Emphasis added.) Brunswick Corp. v. Key Enterprises, Inc., 431 Pa. 15, 18, 244 A.2d 658, 660 (1968); see also Commonwealth v. Robinson, 7 Pa. Commonwealth Ct. 521, 525, 300 A.2d 913, 915 (1973). The emphasized language -- not properly raised -- is fundamental to our decision. The issue which Appellants argue to us, i.e. whether the City proposes to do an ultra vires act, was brought to the attention of and decided by the Chancellor. The issue, however, was not properly raised in the lower court. Therefore, the Chancellor erred in considering it. "Judges in this State have been continually admonished to refrain from deciding issues which are not properly before the court. . . ." Coleman v. Stevenson, 20 Pa. Commonwealth Ct. 498, 501, 343 A.2d 375, 377 (1975). We heed this admonishment and decline to compound the error by reviewing the issue here. Cf., Dilliplaine v. ...


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