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MUTUAL SUPPLY COMPANY APPEAL (01/02/51)

January 2, 1951

MUTUAL SUPPLY COMPANY APPEAL


Appeals, Nos. 220 and 221, March T., 1950, from order of Court of Common Pleas of Allegheny County, April T., 1950, No. 1432, in Appeal of Mutual Supply Company et al. Order affirmed; reargument refused January 22, 1951.

COUNSEL

William J. Kenney and Richardson Blair, with them Roy Thomas Clark, Harton S. Semple and Rose, Eichenauer Stewart & Rose, for appellants.

Samuel A. Schreiner, with him Alexander B. Gilfillan, for appellee.

Samuel Krimsly, for United Mine Workers of America, District No. 5, intervenors.

Before Drew, C.j., Stern, Stearne, Jones, Ladner and Chidsey, JJ.

Author: Jones

[ 366 Pa. Page 425]

OPINION BY MR. JUSTICE JONES

The appellant, Castle Shannon Coal Corporation, owns 161.58 acres of coal (with mining rights thereto) made up of scattered blocks underlying approximately 450 acres of surface land in Upper St. Clair Township, Allegheny County. This coal acreage represents what remains unworked of 1578 acres of coal in Upper St. Clair and Bethel Townships which the Castle Shannon company purchased from Pittsburgh Coal Company in 1941. By its deed for the coal property, Castle Shannon possesses contractual rights to make an entry to the coal through the David H. Andrews surface tract for the purpose of mining and removing the coal. To that end, Mutual Supply Company, a subsidiary of Castle Shannon, purchased 14.43 acres of surface land

[ 366 Pa. Page 426]

    of the Andrews tract; and, together, Mutual and Castle Shannon applied to the authorities of Upper St. Clair Township for a building permit authorizing the construction of a tipple and accessory buildings, according to submitted plan, on Mutual's property "to be used for the servicing of coal mining operations to be conducted by use of the Slope shown on said Plan and for the sale at retail of the coal brought to the surface through said Slope." In short, the applicants proposed to open up a coal mining operation on Mutual's surface property and, from there, to load, transport and deliver to retail customers coal of Castle Shannon brought to the surface through the mining operation.

Upper St. Clair township has a zoning ordinance which was duly enacted in 1947 and according to which, with its amendments, the area within which Mutual's surface land is located is exclusively zoned for single family dwelling use. The granting of a permit for the use of Mutual's property, as proposed by the applicants, would obviously have required a variance from the restriction of the zoning ordinance. After a hearing, the Township's Board of Adjustment refused the applicants the permit applied for and gave four reasons, with specification, for so doing. The applicants thereupon appealed the Board's action to the court below which, after a full hearing, dismissed the appeal and affirmed the order of the Board of Adjustment. The instant appeals therefrom by Mutual Supply Company and Castle Shannon Coal Corporation to this court followed. The basic legal question is whether the Board of Adjustment was guilty of a manifest and flagrant abuse of discretion in refusing the permit which the appellants requested. See Reininger Zoning Case, 362 Pa. 116, 117, 66 A.2d 225.

The appellants assert that their minable coal and practicable access thereto lie solely within the Township and that ...


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