Appeal, No. 207, Jan. T., 1956, from order of Court of Common Pleas of Delaware County, June T., 1955, No. 1853, in case of John E. Lewis et ux. v. Walter G. Emmott, David M. Killinger, and Nelson Birster, Supervisors, Township of Middletown. Order affirmed.
C. Norwood Wherry, with him Holl, Taylor & Holl, for appellants.
Ralph L. Lindenmuth, with him Lindenmuth & Class, for appellees.
Before Stern, C.j., Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE BEEL
The Order of the Court of Common Pleas is affirmed on the following excerpts from the opinion of President Judge SWENEY:
"This is a suit in mandamus by John E. Lewis and Margaret M. Lewis, his wife, owners of a property in
Middletown Township against the Supervisors of said Township to compel the issuance of a building permit. An answer was filed by the defendants, to which the plaintiffs have filed preliminary objections in the nature of a demurrer. In moving the Court for judgment, the plaintiffs contend that the defendants lack the legal power to restrict or prohibit the expansion of a non-conforming use.
"The plaintiffs are the owners of a tract of ground situate on the southeast corner of the intersection of Middletown and Pennell Roads in Middletown Township. Existing improvements on the ground consist of a combination store and dwelling immediately adjacent to the intersecting roads and a two level barn with attached garage on the easterly portion of the lot along Middletown Road, the frontage on the Middletown Road being approximately two hundred twelve (212') feet. The entire premises is zoned R-2 residential; however, the store exists as a non-conforming use. The plaintiffs intend to expand the existing store operation to a 'farmers market' operation in the barn.
"Originally the plaintiffs applied to the Board of Adjustment of Middletown Township for an exception and a hearing was held on August 24, 1954. Although a report denying the exceptions was rendered on September 23, 1954, the plaintiffs, on October 22, 1954, informed the Board of Adjustment that the 'application for exception was withdrawn.'
"Subsequently, the plaintiffs applied to the building inspector for a permit to construct an overhang over an existing door on the barn. This application stated that the building is to be used as 'extension and enlargement of present market'. On April 25, 1955, the building inspector refused the permit. Thereafter, the plaintiffs ...