Appeal, No. 133, March T., 1954, from order of Court of Common Pleas of Westmoreland County, August T., 1953, No. 2, in case of A. J. Aberman, Inc. v. The City of New Kensington and Louis G. Heinle. Order affirmed; reargument refused June 19, 1954. Proceeding upon petition of defendant and rule to show cause why judgment entered for plaintiff upon preliminary objections in action of mandamus should not be opened. Decree entered making rule absolute, before LAIRD, P.J., McWHERTER, BAUER and O'CONNELL, JJ., opinion by LAIRD, P.J., concurred in by BAUER and O'CONNELL, JJ. Plaintiff appealed.
Fred B. Trescher, with him D. J. Snyder, Jr. and Kunkle & Trescher, for appellant.
Milton W. Lamproplos, with him Anthony J. Bonadia, R. E. Best, Smith, Best & Horn and Smith, Buchanan, Ingersoll, Rodewald & Eckert, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
This appeal arises out of an action in mandamus to compel the issuance of a building permit for the construction of a shopping center. preliminary objections by the defendant municipality and its city clerk were dismissed; and the writ was issued peremptorily. Subsequently, the defendants petitioned to have the judgment opened and be let into a defense whereon a rule to show cause was granted. After answer and argument, the rule was made absolute; the preliminary objections formerly dismissed were reconsidered and sustained; and the writ of mandamus was refused. From that order, the plaintiff has appealed.
The basic question raised by the appellant corporation is whether it is entitled to a building permit for the construction of a shopping center in an area which, when the application for the permit was filed, was in the process of being zoned so as to exclude such a use of the land. The facts need be recited with considerable detail.
New Kensington is a Third Class City situated in Westmoreland County. On May 6, 1947, city council
enacted an ordinance (No. 176) which prohibited the construction or alteration of any building within the City without a permit so to do. Such permit was obtainable as a matter of course from the city clerk upon the payment of a fee of two dollars. Some time prior to March, 1953, city council, in accordance with Section 41 (b) of The Third Class City Code of 1951, P.L. 662, 53 PS § 12198-4110 et seq., appointed a commission to prepare a zoning ordinance for the City. When the commission had completed its preliminary report, notice was given that public hearings thereon would be held on March 19th and April 2nd, 1953. Meanwhile, on March 9, 1953, Ordinance No. 261 was introduced in city council and was finally enacted on March 17th. It is this ordinance (No. 261) with which much of the present controversy is concerned. According to its title, the ordinance provided "for the Issuance of a Building Permit for the Alteration and Improvement of a Building in Existence and for the Erection and Construction of Buildings: ... for the Type and Use of Said Buildings and the Locations Permissible Therefor: and... for a Fee for Said Building Permit, in the City of New Kensington...." The ordinance declared that construction or alteration of any building within the City without a permit was unlawful; that applications for building permits should be in writing and accompanied by a complete set of the plans and specifications for the proposed construction or alteration; that applications for permits must be approved by a majority vote of the city council provided the application conformed to "the regulations, locations, and purposes and uses" set forth in the ordinance, which regulations, by reference to a "Building Map", divided the City into four districts,*fn1 the building regulations in each district
being substantially the same imposed by a later enacted zoning ordinance to which further reference will hereinafter be made; that a building permit would be issued by the city clerk (upon payment of two dollars) if city council approved the application ...