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KELLMAN v. MCSHAIN (12/27/51)

December 27, 1951

KELLMAN, APPELLANT,
v.
MCSHAIN



Appeal, No, 256, Jan. T., 1951, from decree of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1949, No. 6764, in case of Michael Kellman v. John McShain, Chairman, et al., constituting The Philadelphia Zoning Board of Adjustment. Decree, as modified, affirmed.

COUNSEL

I. Finkelstein, for appellant.

G. Coe Farrier, Senior Assistant City Solicitor, with him Frank F. Truscott, City Solicitor, for appellees.

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

Author: Ladner

[ 369 Pa. Page 15]

OPINION BY MR. JUSTICE LADNER

Plaintiff appeals from the dismissal of his exception to an order of the Court of Common Pleas No. 6 of Philadelphia County which reads: "AND NOW, this 15th day of June, 1951, the appeal of the petitioner from the decision of the Philadelphia Zoning Board of Adjustment, refusing a zoning permit and a use registration permit to enclose the rear of premises 1235-1247 Crease Street, Philadelphia, is sustained and the decision of the Board is reversed. Petitioner is hereby granted the right to erect the building designated in the application provided, however, that 100 square feet of the area proposed to the covered in the application shall remain an open area." (Italics supplied.)

[ 369 Pa. Page 16]

The only portion of this order complained of is the underlined proviso in the last sentence.

The plaintiff (here appellant) prior to the enactment of the Zoning Ordinance of Philadelphia became the owner of 1237-47 Crease Street, Philadelphia, which premises were used for a great many years as a stable for horses and wagons. He also obtained title to 1235 Crease Street August 1, 1947. This property had been used before the enactment of the Zoning Ordinance as a garage for trucks. The buildings did not conform to the open area requirements established by the ordinance.

An explosion in 1945 on the premises 1235 caused the adjoining wall to collapse together with a roof that was over the other premises owned by the plaintiff. Plaintiff now seeks to place a roof over the entire area owned by him. However, the portion used previously as a stable was covered by a roof that had in the center an opening 10 feet by 10 feet in size, through which, when the building was used as a stable, hay was lowered. At the time of the explosion and before the enactment of the ordinance part of the stable was used to garage trucks.

The proceeding arose through the building inspector's refusal on January 30, 1950, of a certificate to the plaintiff permitting the erection of a new roof in place of the one destroyed. An appeal to the Zoning Board of Adjustment was taken by the plaintiff. On February 18, 1950, the Board refused a variance and plaintiff then appealed to the Court of Common Pleas No. 6. The court found it was unable to dispose of the appeal in the state of the record brought before it because the Board obviously misconceived the nature of plaintiff's ...


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