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MAZEIKA v. AMERICAN OIL COMPANY. (11/14/55)

November 14, 1955

MAZEIKA, APPELLANT,
v.
AMERICAN OIL COMPANY.



Appeal, No. 201, March T., 1955, from order of Court of Common Pleas of Allegheny County, July T., 1955, No. 498, in case of Joseph Mazeika and H. A. Smith v. American Oil Company and John S. Weiss et ux. Order reversed.

COUNSEL

Edward A. Damrau, with him Maurice Chaitkin, and Brennan, Brennan, Damrau & Mohan, for appellants.

Charles Holmes Wolfe, Jr., with him Harland I. Casteel, and Campbell, Houck & Thomas for appellees.

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

Author: Stearne

[ 383 Pa. Page 192]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The single question presented by this appeal is whether or not, in zoning case, the County Court of Allegheny County possesses jurisdiction in equity to restrain or abate an alleged nuisance.

[ 383 Pa. Page 193]

Appellants, Joseph Mazeika and H. A. Smith, are owners of land in the Borough of Emsworth, Allegheny County. Appellees John S. Weiss and wife possess the fee in adjacent land leased to the other appellee, American Oil Company. Appellees applied for and received from the borough building inspector a building permit for the erection of a gas service station on the premises. Appellants objected to the issuance of such permit. When the permit was issued they appealed to the Borough Board of Adjustment which affirmed the action of the inspector. Appellants then appealed to the County Court of Allegheny County, which court has exclusive jurisdiction over such appeals. That court, on April 1, 1955, affirmed the action of the Board of Adjustment. No appeal has been taken from this judgment, which became final and conclusive, the time for appeal having since expired. Appellants then filed a complaint in equity in the Court of Common Pleas, alleging that the construction and maintenance of the gas station in that zoned area would constitute a nuisance. Appellees filed preliminary objections. The Court of Common Pleas sustained the objections and dismissed the complaint. The learned court in its opinion said: "It is the contention of counsel for plaintiffs that the doctrine laid down in the above cited cases does not apply to the instant case, because the County Court of Allegheny County does not have equitable power, and therefore, cannot give the relief to which the plaintiffs are entitled.

"While the County Court does not have general equitable powers, it does have the equitable power given it by the Legislature to cope with every situation that might develop in connection with an appeal taken from the decision of the Board of Adjustment. If it did not have the power to fully and completely give relief to all parties appearing before it in connection

[ 383 Pa. Page 194]

    with appeals from the Board of Adjustment, then we must assume the Legislature did a vain thing in giving it jurisdiction over appeals from zoning cases."

With this ruling we are unable to agree. Zoning, being statutory, is exclusively matter of law and not equity. The procedure to be followed is prescribed in detail in the various zoning Acts of Assembly. Nowhere in the various statutes is provision made, expressly or by implication, for the application of equitable principles. When a procedure is stipulated by a statute, its provisions must be strictly pursued and exclusively applied: Taylor v. Moore, 303 Pa. 469, 154 A. 799; White v. Old York Road Country Club, 318 Pa. 346, 178 A. 3; Bartron v. Northampton County, 342 Pa. 163, 19 A.2d 263; Thompson v. Morrison, Secretary of Commonwealth, 352 Pa. 616, 44 A.2d 55; Era Co., Ltd. v. Pittsburgh Consolidation Coal Co., 355 Pa. 219, 49 A.2d 342; Quein Will, 361 Pa. 133, 62 A.2d 909. It is only where statutory authorities do an illegal act, or one which they have no authority ...


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