Appeal, No. 258, Jan. T., 1956, from final decree of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1955, No. 6090, in case of Jacob Knup, Jr. et al. v. City of Philadelphia et al. Decree affirmed. Equity. Defendants' preliminary objections sustained and decree entered dismissing complaint, opinion by REIMEL, J. Plaintiffs appealed.
Edmund B. Spaeth, Jr. with him MacCoy, Evans & Lewis, for appellants.
James L. Stern, Deputy City Solicitor, with him Gordon Cavanaugh, Assistant City Solicitor, and David Berger, City Solicitor, for City of Philadelphia, appellee.
Samuel H. Landy, with him Martin J. Vegderman and Freedman, Landy, & Lorry, for intervening defendants, appellees.
Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
This is an appeal by plaintiffs from a decree of the court below sustaining defendants' preliminary objections and dismissing plaintiffs' complaint in equity for lack of jurisdiction.
Plaintiffs' bill sought an injunction to restrain the City of Philadelphia from issuing any permit under the terms of an ordinance of December 29, 1955, which rezoned
a certain tract of land from class "A Residential" to class "H-2 Residential." The tract affected by the ordinance adjoins or is in the immediate vicinity of plaintiffs' properties. The bill averred that the ordinance would permit the owners to erect apartment buildings on their land and that it was invalid for several reasons.
One reason was that the construction of such buildings would constitute a nuisance. As to this the court pointed out that equity could not take jurisdiction to enjoin the erection of an apartment house as a nuisance per se, and plaintiffs admit in their brief that the court was right in so holding.
Another reason was that the ordinance violated the Act of May 6, 1929, P.L. 1551, section 3, which provided that zoning regulations should be designed to lessen traffic congestion and overcrowding, reduce fire hazards, and for other beneficial purposes, whereas it was alleged that this ordinance, so far from accomplishing those results, would aggravate the evils which the act intended ...