Schubach v. Department of Public Welfare , 4 Pa. Commw. 636 ( 1972 )

Opinion by

Judge Wilkinson,

This is an action in Equity to enjoin the granting of a license to operate a nursing home or revoke such license if issued. The fundamental question involved is the validity of the zoning where the nursing home will be operated. With either supreme confidence or reckless abandon the intervening defendants have constructed what is referred to as a Two Million Dollar nursing-home while plaintiffs have contested the validity of the zoning. Pursuing their policy of construction during litigation, intervening defendants assert the home was 90% completed on October 9, 1070, when the Supreme Court of Pennsylvania declared the zoning invalid. See Schubach v. Zoning Board of Adjustment, 440 Pa. 249, 270 A. 2d 397 (1970).

On December 8, 1970, plaintiffs commenced an action in Equity in the Court of Common Pleas of Philadelphia to enjoin any further construction. On January 18, 1971, a new zoning ordinance was passed. The validity of this second ordinance then became and remains the central issue in the Common Pleas Equity action.

On January 29, 1971, the Supreme Court of Pennsylvania issued an order prohibiting the completion of construction and prohibiting the operation of the nursing home until after the termination of the litigation. On August 16, 1971, the Common Pleas Court entered a Decree Nisi ruling substantially in favor of intervening defendants, directing certain action to be taken by intervening defendants to prevent a nuisance, and stating that intervening defendants had been in violation of the Supreme Court’s order. Both parties filed exceptions, the exceptions were argued, and at the time of the argument of this case, the Common Pleas Court en banc had not handed down a decision.

Following the Decree Nisi, the Department of Welfare notified the parties that it intended to act favorably upon the license application that was then pending. It was at that point that plaintiffs brought this action to enjoin the granting of the license. After the request for a preliminary injunction was denied by this Court, the Department granted the license.

The prudence of granting a license to do that which the Department had notice had been prohibited by the Supreme Court of Pennsylvania might well be questioned. Resolving all doubts in favor of the Department we take this to be its authority to the intervening defendants to operate if, as and when the intervening defendants are in compliance with the Supreme Court order.

As is readly apparent from the above recitation of facts, the legality of the intervening defendants’ operation of the nursing home here in question is now pending before the Common Pleas Court of Philadelphia and the Supreme Court of Pennsylvania. We cannot see how plaintiffs can carry their fundamental burden of establishing that this Court should exercise its extraordinary powers of equity because they have no other adequate remedy. See Rodes and De Szirmay v. Commonwealth of Pennsylvania, 2 Pa. Commonwealth Ct. 328, 279 A. 2d 782 (1971). In the event the other pending actions are concluded without deciding all of the issues here presented, it would be appropriate at this time, should the plaintiffs wish to bring a new action in this Court, for us to decide whether the then remaining issues, if any, and parties are such as to give this Court equity jurisdiction.

Order

The motion for summary judgment in favor of the defendants is granted.