535 A.2d 1200 | Pa. Commw. Ct. | 1988
Opinion by
William M. Berger and Jeffry A. Epstein, t/a 535 Hamilton Mall Associates (Berger-Epstein) appeal an order of the Lehigh County Court of Common Pleas preliminarily enjoining the Allentown Parking Authority (Authority) from executing a parking lease with it until final disposition of an equity action filed by Americus Centre, Inc. The complaint which Americus Centre, Inc. filed with the lower court seeks an order requiring the Authority to either sell or lease to it, the parking lot at Sixth and Court Streets in Allentown, Pennsylvania, or in the alternative to solicit competitive bids for the parking spaces available in the lot.
In 1985, Americus Centre, Inc., purchased for approximately $2,000,000.00, the Americus Hotel located in downtown Allentown, Pennsylvania, with the intention of renovating the building for use as a hotel complete with á restaurant and retail shops. At the hearing on the preliminary injunction, Americus Centre, Inc.’s president, Mark A. Mendelson, testified that in April of 1986, he met with the Authority’s chairman and expressed his interest in purchasing the thirty-six space parking lot located at Sixth and Court Streets near the hotel renovation project. He further alleged that the chairman stated that he would recommend that the Authority sell the Sixth and Court Streets lot at 24-30
At the hearing on the preliminary injunction, the Authority’s executive director testified that in March of 1986, Berger-Epstein expressed its interest in leasing parking spaces in the Sixth and Court Streets lot for use by prospective tenants of its office renovation project. In a letter dated April 17, 1986, the executive director wrote to William M. Berger informing him that there would be twenty-two spaces available in October of 1986, which the Authority would be willing to reserve for Berger-Epstein.
In July of 1986, the Authority appointed a committee to consider the advisability of selling the lot at Sixth and Court Streets and on September 24, 1986, the committee recommended against such a course of action.
After a hearing, the lower court entered an order dated January 2, 1987, preliminarily enjoining the Authority from executing lease agreements with Berger-Epstein or Musselman Advertising. By order of January 14, 1987, the lower court permitted Berger-Epstein to intervene in the action. This appeal followed.
On appeal Berger-Epstein contends that it was an indispensable party to the underlying action brought by Americus Centre, Inc. against the Authority to enforce competitive bidding and thus the lower court was without jurisdiction to enter the preliminary injunction. Berger-Epstein further contends that the lower court did not have reasonable grounds to issue the preliminary injunction. In support of its contention that it was an indispensable party to the underlying action, Berger-Epstein maintains it had a contractual right and a possessory interest in the parking lot and therefore a
There is no credible record evidence that Berger-Epstein had an actual contractual or possessory interest in the lot at the time the preliminary injunction was issued. Any interest Berger-Epstein had in the lot is based upon the April 17, 1986, letter from the Authority’s executive director and the October 8, 1986, meeting where the Authority voted to enter into a three year written lease agreement with Berger-Epstein for twenty-two spaces. These actions do not give Berger-Epstein a possessory interest in the parking lot at Sixth and Court Streets. The April 17, 1986, letter contained no lease terms and the executive director admitted that she had no authority to make Authority policy.
In Mechanicsburg Area School District v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981), our Supreme Court announced the following considerations for determining whether a party is indispensable:
(1) Do absent parties have a right or interest related to the claim?
(2) If so, what is the nature of that right or interest?
*314 (3) Is that right or interest essential to the merits of the issue?
(4) Can justice be afforded without violating the due process rights of absent parties?
In Mechanicsburg, ■ the school district, alleging certain calculation errors in its personal income evaluation, brought an action to enjoin certain' Commonwealth officials from paying the final installment of school subsidies for 1977-1978. The Court ruled that the other school districts were not indispensable parties since their rights were not essential to the merits of the issue of correct computation. Similarly, in the case at hand, the rights of Berger-Epstein are not essential to the merits of the issue of whether the Authority must engage in competitive bidding prior to leasing commercial parking space. To the contrary, Berger-Epstein has no possessory interest in the twenty-two spaces at the Sixth and Court Streets lot and stands in the same position as any other potential .commercial lessee with regard to the issue of competitive bidding.
We next turn to Appellants contention that the lower court had no reasonable grounds to issue the preliminary injunction. We have held that a preliminary injunction may only be granted where:
(1) The relief is necessary to prevent immediate and irreparable harm which cannot be compensated by damages;
(2) greater injury will occur from refusing the injunction than from granting it;
(3) the injunction will restore the parties to the status quo as it existed immediately before the alleged wrongful conduct;
(4) the alleged wrong is manifest, and the injunction is reasonably suited to abate it; and
(5) the plaintiffs right to relief is clear.
On appeal from a grant of a preliminary injunction, we will not inquire into the merits of the controversy. Willman v. Childrens Hospital of Pittsburgh, 505 Pa. 263, 479 A.2d 452 (1984). Instead, our review of the lower courts order is limited to a determination of whether the record contains reasonable grounds to support the preliminary injunction. Fischer v. Department of Public Welfare, 497 Pa. 267, 439 A.2d 1172 (1982).
Berger-Epstein contends that the lower court erred in granting the preliminary injunction in that: Americus Centre, Inc. did not show (1) that it would suffer immediate and irreparable harm that could not be compensated by damages; (2) that the injunction would preserve the status quo; or (3) a clear right to relief.
In support of its argument that Americus Centre, Inc. would not suffer immediate and irreparable harm, Berger-Epstein lists other parking facilities in the vicinity of the Americus hotel which were available to Americus Centre, Inc. at the time of the preliminary injunction hearing. A careful review of the record reveals that the trial court could reasonably find that these alternatives were not feasible. For instance, Appellant presented evidence that there were sixty spaces available at Colonial Parking, Inc.’s surface lot. However, the record demonstrates that this lot was located further from the hotel than the Sixth and Court Streets lot and was inconvenient for valet parking. The owner of the Park and Shop lots testified that he could not provide Americus Centre, Inc. with a long term lease and parking was subject to availability. The Authority’s parking deck at Sixth and Linden Streets does not provide the same ease of access from the hotel as the lot at Sixth and Court Streets. None of the alternatives would be as convenient as the Sixth and Court Streets lot located
Appellant also maintains that the injunction did not preserve the status quo because it deprived it of contractual rights and possessory interests in the lot at Sixth and Court Streets. However, as we have already determined, Appellants had no contractual right or possessory interest in the lot. If the injunction had not issued, the Authority and Berger-Epstein would have executed a three year written lease for the Sixth and Court Streets lot. Therefore the injunction preserved the status quo.
Berger-Epstein also maintains that the lower court erred in granting the injunction because Americus Centre, Inc.s right to relief is not clear. In support of this contention, Berger-Epstein points out that the lower court noted in its order granting the preliminary injunction that it was not entirely convinced that Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A.2d 138 (1966) stands for the proposition that the Authority must engage in competitive bidding for commercial parking leases. In the underlying action, Americus Centre, Inc. contends that the Authority violated the Parking Authority Law by allotting space to Berger-Epstein without first engaging in competitive bidding.
Section 5(a) of the Parking Authorities Law,
The Authority shall be for the purpose of . . . leasing, either in the capacity of lessor or lessee, land and facilities to be devoted to the parking of*317 vehicles of any kind: Provided, however, That the Authority shall not have the power to engage in the sale of gasoline, the sale of automobile accessories, automobile repair and service, or any other garage service and shall not engage in the sale of any commodity of trade or commerce.
The Authority shall have the power to lease portions of the street level or other floors of the parking facilities for commercial use and for any use in addition to parking, including emergency automobile repair service, and the sale, by the lessee, of any commodity of trade or commerce or any service, and, except the sale of gasoline or the sale of automobile accessories, where, in the opinion of the Authority, such leasing is desirable and feasible in order to assist in defraying the expenses of the Authority. Such leases shall be granted on a fair competitive basis on such negotiated or competitive basis as the Authority may deem best suited to accomplish the above purpose. (Emphasis added.)
In Price, the Supreme Court held that the Philadelphia Parking Authority’s lease of air rights was a lease of non-parking commercial space which was subject to the requirement of competitive bidding. Berger-Epstein maintains that Price stands for the proposition that a parking authority must engage in competitive bidding before leasing air rights but is not required to do so in order to lease a proposed garage facility. It further maintains that Section 5(a) of the Act differentiates between the leasing of commercial parking spaces and other commercial uses for purposes of competitive bidding. On the other hand, Americus Centre, Inc. argues that Section 5(a) does not distinguish between commercial parking uses and other commercial uses with regard to competitive bidding and that under Price, if an
We note that subsequent to Price, the Legislature, in 1968, amended Section 5 of the Act. The amendment permitted the Authority
We have held that a clear right to relief does not require the party seeking a preliminary injunction to demonstrate an absolute right to relief. T.W. Phillips. If
The question of the need for competitive bidding raised on the underlying claim is clearly substantial. As the other criteria of a preliminary injunction have been met,
We conclude that the lower court had reasonable grounds to justify the grant of the preliminary injunction to Americus Centre, Inc. Accordingly, we will affirm its order.
Order
And Now, this 5th day of January, 1988, the order of the Lehigh County Court of Common Pleas at No. 86-E-119, dated January 2, 1987, is affirmed.
Mendelson entered into a written agreement to purchase the property adjacent to the Sixth and Court Streets lot on June 26, 1986. The agreement was contingent upon the lot at Sixth and Court Streets being sold to Mendelson. At the time he purchased the property Mendelson waived the contingency, allegedly relying on a pledge by the City to sell or lease the parking lot to Americus Centre, Inc.
See, Paragraph 58 of Exhibit “A” and Exhibit “1” to Exhibit “A” of Petition of Jeffry A. Epstein and William M. Berger, Trading As 535 Hamilton Mall Associates, To Intervene Pursuant to Pa. R.C.P. 2328.
Musselman Advertising has not filed a motion to intervene in this matter.
See Notes of Testimony of December 26, 1986, preliminary injunction hearing at 82.
Act of June 5, 1947, P.L. 458, as amended, (Act) 53 P.S. §345(a).
The 1968 Amendment only provided that the Authorities in cities of the second class could lease portions of the street level or other floors of parking facilities for any use in addition to parking, with the exception of the sale of gasoline or automobile accessories. Subsequently, this privilege was extended to all Authorities.
Berger-Epstein makes a bare allegation that Americus Centre, Inc. failed to show that greater injury would occur from refusing the injunction than from granting it. The record reflects that the Authority is leasing the twenty-two spaces at the Sixth and Court Streets lot to Berger-Epstein on a month to month basis. Therefore, Berger-Epstein has not suffered any substantial injury from not being able to execute a long-term lease prior to disposition of the underlying action. Furthermore, as discussed above, Americus Centre, Inc. would have suffered immediate and irreparable harm if the injunction had not issued.