Baldwin Borough v. Matthews

Concurring Opinion by

Mr. Justice Bell :

This is a difficult decision for me because (1) I believe that under the opinion of the majority of this Court in Jacobs v. Fetzer, 381 Pa. 262, 112. A. 2d 356 (in which I strongly dissented) mandamus is not a proper or available remedy* where a plaintiff seeks a building permit for the construction of a dwelling house, and (2) because only a Court of Equity can fairly and wisely determine whether the danger to - the community or municipality from subterranean fires is such as to justify an injunction denying plaintiffs the right to. build on their own property.

Since a Court of Equity is apparently prohibited from considering this situation (See: Jacobs v. Fetzer, supra) I shall cut the Gordian knot and, considering the evidence before us, concur in the result reached by the majority.

The law as to mandamus is accurately and succinctly stated in Travis v. Teter, 370 Pa. 326, 330, 331, 87 A. 2d 177, and in Garratt v. Philadelphia, 387 Pa. 442, 448, 127 A. 2d 738.