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MOLNAR v. GEORGE B. HENNE & CO. (06/01/54)

THE SUPREME COURT OF PENNSYLVANIA


June 1, 1954

MOLNAR
v.
GEORGE B. HENNE & CO., INC., APPELLANT

Appeal, No. 173, Jan. T., 1953, from decree of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1951, No. 396, transferred to Court of Common Pleas No. 3, March T., 1951, No. 1151, in case of Ignatz Molnar et ux. and City of Philadelphia v. George B. Henne & Co., Inc. Decree affirmed. Complaint in equity. The facts are stated in the opinion, by MAWHINNEY, J., of the court below, as follows: 10. The evidence does not satisfactorily and sufficiently prove that the wife plaintiff suffered severe nervous shock as a result of noise and vibrations incident to defendant's manufacturing operations, nor does the evidence satisfactorily and sufficiently show that the defendant husband sustained such nervous shock as he alleged. The defendant husband worked during the period here pertinent for The Campbell Upholstering Company in Wilmington, Delaware, from the hours 8:15 o'clock a.m. to 3:45 o'clock p.m. and could not have been subjected to noise and vibration to the extent and with the effect he described. (e) In about July, 1945, the building was purchased by George B. Evans Laboratories and was used until early 1946 for manufacturing and warehousing pharmaceutical products and cosmetics. On October 3, 1945, an application was filed to secure authorization for making alterations to use the building for storage of medical supplies, which application was refused because of the D-residential classification of the district. An appeal to the Zoning Board of Adjustment resulted in the issuance of a certificate of variance on October 18, 1945, authorizing the Zoning Department to issue a use permit for storage of medical supplies. 14. The manufacture of hardware is a use for property which is permitted by the Philadelphia Zoning Ordinance only in areas designated "Industrial" or in less restricted areas: see sections 21(16) and 21(23) of the Philadelphia Zoning Ordinance. Section 4 of the Philadelphia Zoning Ordinance of 1933 (as amended) pertaining to nonconforming uses provides in pertinent part as follows: "(1) Any land, existing use of which at the time of passage of this ordinance, does not conform with the regulations of the district in which it is located, shall have such use considered a non-conforming use, which may continue on such land but shall be subject to the regulations covering non-conforming uses.... "(3) Change of Use. A non-conforming building or use shall be considered as such unless and until it complies with the regulations of the district in which it is located. Such use shall not be changed to a use designated for a district having less restrictive regulations.

COUNSEL

Harry R. Back, with him Back & Levy, for appellant.

Benjamin Fertik and James L. Stern, Deputy City Solicitor, with them Abraham L. Freedman, City Solicitor, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

[ 377 Pa. Page 582]

OPINION PER CURIAM

The decree is affirmed on the adjudication and opinion of the late Judge MAWHINNEY for the learned court below, at the appellant's costs.

Disposition

The decree is affirmed on the adjudication and opinion of the late Judge MAWHINNEY for the learned court below, at the appellant's costs.

STATEMENT OF CASE FOOTNOTES

1 Section 21(27) authorizes: Pharmaceutical products, toilet preparations, patent or proprietary medicines or baking powder manufacturing, provided no toxic or corrosive fumes, offensive odors or dust are permitted to escape from the building.

2 Section 21(16) authorizes: Hardware, cutlery and tool manufacturing.

3 Section 21(23) authorizes: Metal devices and products (fabricated).

19540601

© 1998 VersusLaw Inc.



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