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decided: February 4, 1986.


Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of DeWane A. Wivagg and Blanche E. Wivagg, his wife et al. v. Downtown McKeesport Business District Authority, GD 81-09329.


Mord C. Taylor, Jr., for appellants.

John J. Myers, for appellee.

Judges Craig, Barry and Colins. President Judge Crumlish, Jr. and Judges Rogers, Craig, MacPhail, Barry, Colins and Palladino. Opinion by Judge Barry.

Author: Barry

[ 94 Pa. Commw. Page 599]

This appeal arises from an order of the Court of Common Pleas of Allegheny County denying a request by several non-retail business persons and businesses (appellants) to enjoin the Downtown McKeesport Business District Authority (Authority) from implementing a Plan of Administrative Services (the plan) and from collecting the assessments imposed in connection with the plan's implementation.

The pertinent facts, as found by the trial court, indicate that the plan consists of a variety of services including promotional advertising, free parking programs and increased security. These services are to be undertaken by the Authority for the benefit of businesses located in downtown McKeesport. The plan, including the necessary assessments, was approved by the city council on September 3, 1980. On April 14, 1981, appellants filed an equity action in the Court of Common Pleas of Allegheny County seeking to enjoin implementation of the plan on the grounds that it is not in compliance with the appropriate statutory requirements and it is unreasonable. After a hearing on the merits, the trial court dismissed the action and overruled the exceptions. This appeal followed.

Before we can reach the merits of this case, we must determine whether the trial court had subject matter jurisdiction. Although neither side has raised this issue, jurisdictional questions may be raised by an appellate court sua sponte. Lang v. Tax Review Board of City of Philadelphia, 69 Pa. Commonwealth Ct. 525, 451 A.2d 1057 (1982).

We must first note that our courts have carefully drawn a distinction between "jurisdiction" as it refers

[ 94 Pa. Commw. Page 600]

    to the power of the court to enter into the inquiry and "equity jurisdiction", which refers only to the remedies available to the court. Where an adequate remedy at law exists the court merely lacks "equity jurisdiction." But where the legislature has provided an exclusive statutory remedy it has deprived the court of the power to inquire into the case in any manner other than the one specifically prescribed and, therefore, the court lacks jurisdiction. Lashe v. Northern York County School District, 52 Pa. Commonwealth Ct. 541, 417 A.2d 260 (1980); Hoover v. Bucks County Tax Claim Bureau, 44 Pa. Commonwealth Ct. 529, 405 A.2d 562 (1979).

Pa. R.C.P. No. 1509 provides as follows:

Rule 1509. Preliminary Objections

(a) Preliminary objections authorized by Rule 1017(b) are available to any party.

(b) The objections of laches and failure to exercise or exhaust a statutory remedy may be raised by preliminary objection, answer or reply but are not waived if not pleaded.

(c) The objection of the existence of a full, complete and adequate non-statutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court. If not so pleaded, the objection is waived. (Emphasis added.)

Consequently, although neither objection has been raised, this Court has the duty to inquire whether appellants have failed to pursue any exclusive statutory remedy specifically provided by the legislature to address the questions raised in their complaint.

The remedy arguably applicable in this instance is found in Section 4B(h) of the Municipality Authorities Act of 1945 (Act), Act of May 2, 1945, P.L. 382, as amended, 53 P.S. ยง 306B(h) which provides in part:

[ 94 Pa. Commw. Page 601]

However, we need not decide whether the trial court sitting in equity had jurisdiction to entertain that challenge because appellants have abandoned this issue. The trial court dismissed it on the merits and they did not raise it in their exceptions to the trial court's decision. In fact, the only issues which are presently before us are numbers one and four.

These two issues do not challenge the adequacy, safety or reasonableness of the services provided by the Authority but they question the very power of the Authority to provide these services on the grounds that the plan does not provide for actual improvements which appellants argue must be provided in conjunction with the services and, in view of the fact that one third of the people affected have, according to appellants, objected.

We believe that this type of challenge is analogous to those presented in certain tax assessment cases. This Court has held that courts of equity have no jurisdiction over cases questioning tax assessments because the legislature has provided an exclusive statutory remedy in the form of appeals from the assessment. However, these same courts do have jurisdiction to entertain questions challenging the general powers to assess or levy taxes. Public Parking Authority v. Board of Property Assessment, Appeals and Review, 377 Pa. 274, 105 A.2d 165 (1954); County of Allegheny v. Three Rivers Management Co., 16 Pa. Commonwealth Ct. 361, 328 A.2d 567 (1974). We, therefore, conclude that these issues were properly before the trial court sitting in equity.

In reviewing a refusal to grant an injunction our scope of review is limited to a determination of whether the trial court had any apparently reasonable grounds for its actions. We will not look into the merits unless it is clear that no such grounds existed or the laws relied on are palpably wrong or clearly inapplicable.

[ 94 Pa. Commw. Page 603]



Now, February 4, 1986, the order of the Court of Common Pleas of Allegheny County at GD 81-09329, dated August 1, 1983, is affirmed.




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