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FIRTH v. SCHERZBERG (01/02/51)

January 2, 1951

FIRTH
v.
SCHERZBERG, APPELLANT



Appeals, Nos. 239 and 240, Jan. T., 1950, from decree of Court of Common Pleas No. 2 of Philadelphia County, March T., 1949, No. 5980, in case of Rose A. Firth v. Karl Scherzberg et al. Decree, as modified, affirmed.

COUNSEL

Wesley H. Caldwell, with him Roper & Caldwell, for appellants.

Norman R. Bradley, with him Samuel Kagle and Benjamin Fertik, for appellees.

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

Author: Jones

[ 366 Pa. Page 444]

OPINION BY MR. JUSTICE JONES

The plaintiff (joined later by a number of co-complaints) sued to restrain the defendants' use of an unimproved piece of land in Philadelphia as a terminal parking place for tractor-trailer trucks. The complaint averred that the use so made of the property constituted a nuisance per se, being an alleged violation of a municipal zoning ordinance, and also a nuisance in fact.

The defendants Scherzberg, husband and wife, jointly purchased a portion of the property in question

[ 366 Pa. Page 445]

    in 1924. From the time of this acquisition, the husband used the property as a storage or parking place for his trucks in his business of local and long distance hauling by motor vehicle as a private and public carrier. In 1932 the Scherzbergs purchased an adjoining piece of property upon which they erected a relatively large garage which Karl Scherzberg likewise used in the operation of his business. The next year (1933) the City of Philadelphia enacted a zoning ordinance whereby the premises in question were included in a "D" Residential Zone which restricted the use of property within the designated classification to multiple dwellings such as row houses. Scherzberg's use of the property for truck storage and parking having antedated the enactment of the zoning ordinance, he continued thereafter to use it uninterruptedly for such purpose as a permissible nonconforming use under the terms of the ordinance. In 1940 the Scherzbergs leased the premises to the defendant, Harry A. Blades, for his use in storing and parking his trucks or tractor-trailers there in connection with his business as a carrier of merchandise by motor vehicle, -- a business which he conducted as an individual until 1949 when he incorporated it as Harry A. Blades, Inc., here also a defendant. The Blades company has since continued to use the property for the same business purposes. The use of the property consists of the parking or storage there of tractors and trailers, particularly the latter which ofttimes are interchanged between tractors according to the destinations of the cargoes and the economical disposition of the tractors.No freight is loaded or unloaded there; no garage work done; and no part of the premises is used by motor vehicles of anyone other than Harry A. Blades, Inc.

The learned chancellor filed an adjudication in which he held that the use of the property, so made or permitted by the defendants, constituted a nuisance

[ 366 Pa. Page 446]

    both per se and in fact and, thereupon, entered a decree nisi perpetually enjoining and restraining the defendants from conducting the motor terminal business operated by them on the premises in question. The decree also perpetually enjoins and restrains the defendants, their agents, servants or employees from blocking or obstructing a certain street upon which the property abuts. The court en banc, upon disposing of exceptions to the adjudication and decree ...


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