Appeal, No. 35, Jan. T., 1955, from decree of Court of Common Pleas of Montgomery County, June T., 1953, No. 17, in case of Robert J. Hannum et al. v. Oak Lane Shopping Center, Inc., Joseph Heffernan and Penn Fruit Company. Decree affirmed.
Cassin W. Craig, with him Morris Gerber and Wisler, Pearlstine, Talone & Gerber, for appellants.
Bernard G. Segal, with him Josephine H. Klein, Jerome J. Shestack and Schnader, Harrison, Segal & Lewis, for Penn Fruit Company, appellee.
Desmond J. McTighe, with him Walter B. Gibbons and Duffy, McTighe & McElhone, for appellees.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This is an appeal from the refusal of the court below to declare a "supermarket" in a predominantly residential neighborhood a nuisance per se.
On a tract of land comprising a block bounded by Cheltenham Avenue, Brief Road, Dewey Road and Front Street, Oak Lane Manor, Cheltenham Township, Montgomery County, the defendant Oak Lane Shopping Center, Inc., proposes to erect nu a large market building with provision for a two-hundred-fifty-car parking lot for patrons of the supermarket and other stores which are also to be built on the tract. The supermarket will be operated by the defendant Penn Fruit Company, under a 25 year lease from the Oak Lane Shopping Center. Plaintiffs, who object to the establishment of the supermarket on that location, are owners and residents of homes on Dewey Road, except that one of
them resides and has an office at the corner of Cheltenham Avenue and Brief Road.*fn1
The building to be erected will be a one-story structure about 28 feet in height, 176 feet long and 113 feet wide. Plaintiffs' objections are directed to certain features of the project which they claim will depreciate the value of their properties and injuriously affect their living conditions. They complain that on the corner of Cheltenham Avenue and Front Street there is to be a neon sign of a width of 15 feet and towering 72 feet above the ground. That the parking lot on the outside of the market will be lighted from a number of aerial standards placed around the perimeter of the tract. That the glare from these spotlights and from the neon sigh will be most offensive. That the operation of large trucks in and out of the market will be carried on between 6 A.M. and 2 P.M., and during the summertime fresh produce will be delivered as early as 4 A.M. That the proximity of loading platforms to the houses on the north side of Dewey Road will make it difficult adequately to screen them from the view of the occupants of those residences. That there will be a probable use of the parking lot by some 2,000 cars daily. And finally, in general, that a modern supermarket of the size here contemplated, conducting nighttime business, brilliantly illuminated with neon signs and powerful lights, with large facilities for the parking of motor vehicles and the ...