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CITY BEAVER FALLS v. NEWTON M. SAMUELS (11/16/79)

SUPERIOR COURT OF PENNSYLVANIA


filed: November 16, 1979.

CITY OF BEAVER FALLS
v.
NEWTON M. SAMUELS, APPELLANT

No. 1214 April Term, 1978, Appeal from the Decree and Order in the Court of Common Pleas of Beaver County, Civil Action-Law, No. 677 of 1976.

COUNSEL

J. Lauson Cashdollar, Beaver, for appellant.

Edward S. Young, Beaver Falls, for appellee.

Price, Hester and Montgomery, JJ.

Author: Hester

[ 272 Pa. Super. Page 77]

Appellee, the City of Beaver Falls (a third class city), instituted the present equity action against appellant Newton M. Samuels, the owner of a number of buildings located in Beaver Falls. The complaint alleged that these structures were in such a state of disrepair and deterioration as to constitute public nuisances and were a threat to the public health, safety, and welfare of the citizens of Beaver Falls. The City requested the court to either require appellant to repair and restore the premises or to demolish them altogether. Prior to the beginning of testimony, the court took a view of the twelve buildings in question, accompanied by appellant and his attorney, the city solicitor, public health

[ 272 Pa. Super. Page 78]

    officer, fire chief, and engineer. Following the view, the City offered testimony and a large number of photographs of the premises, while appellant presented no testimony. At the close of evidence, the court filed an adjudication and decree nisi, ordering some of the buildings demolished and directing that the remaining be repaired and cleaned out. Appellant's exceptions were dismissed by the court en banc and an order was entered affirming the decree nisi. This appeal followed.*fn1

Both below and on appeal, appellant has contended that the City is precluded from proceeding by a common law equity action since it has available an adequate remedy at law. The Third Class City Code, Act of June 23, 1931, P.L. 1932; June 28, 1951, P.L. 662 (53 P.S. § 35101 et seq.) provides three alternate statutory avenues by which the municipality may proceed to abate a nuisance. The first (53 P.S. §§ 37320-37324) authorizes the board of health to determine that a nuisance, as defined, does exist and to order it removed, abated, suspended, altered, or otherwise prevented or avoided. Following notice and hearing, the aggrieved party may appeal to the court. The second avenue of relief (53 P.S. §§ 39140-39143) empowers the city council to permit the mayor to present a petition to the court declaring property to be a public nuisance. The court may then appoint a board of viewers whose decision, if adverse to the lot owner, may be appealed to the court of common pleas. Under the third mode of proceeding, (53 P.S. § 37403(16)), the city council may, by ordinance, prohibit nuisances and require the owner to remove the same from his property. The council is authorized to enforce its nuisance ordinance in a court of equity.

None of these statutory remedies were pursued by the City in the instant case.*fn2 Instead, appellee argues that

[ 272 Pa. Super. Page 79]

    these procedures are not exclusive and that a common law equity action is not barred by the Third Class City Code. We are compelled to disagree. While it is true that equity may normally be invoked by a municipality to restrain a public nuisance, Commonwealth v. Glen Alden Corp., 418 Pa. 57, 210 A.2d 256 (1965); 6 McQuillin, Municipal Corporations (3rd Ed.) § 24.73, the cases are also clear that equity's inquiry will be barred where the Legislature has provided a statutory procedure to resolve the controversy. Glen Alden, supra; Borough of Collegeville v. Philadelphia Suburban Water Co., 377 Pa. 636, 105 A.2d 722 (1954); Act of November 25, 1970, P.L. 707, No. 230, added December 6, 1972, P.L. 1339, No. 290, § 3 (1 Pa.C.S.A. § 1504; formerly 46 P.S. § 156) (statutory remedy preferred over common law). Thus, in Glen Alden, the Air Pollution Control Act was held to oust equitable jurisdiction to inquire into a public nuisance since the Act provided a full and complete procedure to resolve the dispute. Similarly, in Collegeville, two statutes authorized sufficient administrative procedures to abate a nuisance as to preclude a suit in equity to enjoin the nuisance. These cases are, of course, merely specific applications of the general rule that equity will not inquire into a controversy where to do so would obviate a constitutionally valid statutory exclusive procedure enacted by the legislature. Lilian v. Commonwealth, 467 Pa. 15, 354 A.2d 250 (1976); W. Homestead v. Allegheny County Board of School Directors, 440 Pa. 113, 269 A.2d 904 (1970); Calabrese v. Page 80} Collier Twp. Municipal Auth., 430 Pa. 289, 240 A.2d 544 (1968); Emerson-Harrell Bar Corp., Inc., v. Commonwealth, 33 Pa. Commw. 578, 382 A.2d 500 (1978); Tornetta v. Plymouth Twp. Municipal Auth., 31 Pa. Commw. 353, 375 A.2d 1381 (1977); City of Philadelphia v. Franklin Smelting and Refining Co., 3 Pa. Commw. 626, 284 A.2d 339 (1971). "The manner or mode of destruction or removal of property, in the municipal abatement of a public nuisance, must substantially observe the governing requirements of statute, charter, or ordinance." 6 McQuillin, supra, § 24.75.*fn3

The only exception to this general mandate is where the statutory procedure is not adequate, complete, or effective, see, e. g., Rankin v. Chester-Upland School District, 11 Pa. Commw. 232, 312 A.2d 605 (1973), or where its pursuit might work irreparable harm. Duquesne Light Co., v. Twp. of Upper St. Clair, 377 Pa. 323, 105 A.2d 287 (1954); Wood v. Goldvarg, 365 Pa. 92, 74 A.2d 100 (1950). Appellee does not advance any of these arguments as justification for the instant equity proceeding. The court below found the structures in question constitute health and fire hazards, are structurally unsound, are open and accessible to animals and vermin, that garbage, rubbish, and junk have accumulated therein, and are, in general, a danger to the health, safety, and welfare of the citizens. These are precisely the type of public nuisances at which the Code's provisions are aimed. Moreover, our review of the three statutory forms of redress provided by the Third Class City persuades us the legislature intended to treat thoroughly the matter of abating public nuisances. Each avenue is designed to be flexible, but is predicated upon procedural requisites such as use of the board of health, a board of viewers, or enforcement of an

[ 272 Pa. Super. Page 81]

    ordinance defining and prohibiting nuisances.*fn4 An ordinary equity action, such as we have instantly, is simply not contemplated under any of the statutory provisions.*fn5

Since the City had an adequate statutory remedy, and offers no justification for bypassing the legislative scheme, we are constrained to conclude the equity side of the court could not entertain the suit.

Order and decree reversed. Complaint dismissed.


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