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SEARS v. POWER. (09/30/57)

September 30, 1957

SEARS, ROEBUCK & COMPANY, APPELLANT,
v.
POWER.



Appeal, No. 160, Jan. T., 1957, from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1954, No. 2134, in case of Sears, Roebuck & Company et al. v. John E. Power, Jr., Chairman et al. Judgment affirmed.

COUNSEL

C. Gilpin Gibbon, with him Witney & Thornton, for appellants.

James L. Stern, Deputy City Solicitor, with him David Berger, City Solicitor, Gordon Cavanaugh, Assistant City Solicitor, and Leonard L. Ettinger, Deputy City Solicitor, for appellees.

Before Jones, C.j., Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Cohen

[ 390 Pa. Page 207]

OPINION BY MR. JUSTICE COHEN

In Bregman v. Exley, 354 Pa. 25, 46 A.2d 272 (1946) we held that the Philadelphia Zoning Ordinance then in force*fn1 which authorized the "Sale or storage of goods, merchandise, or commodities in stores or show rooms" in class "A" zoned commercial districts, permitted property located in such districts to be used for the storage of merchandise for sales by salesmen-at-large to customers throughout the city.

[ 390 Pa. Page 208]

The opinion of Mr. Justice LINN in the Bregman case was filed on March 25, 1946, and on September 17, 1946, the Philadelphia City Council amended the zoning ordinance to provide that in "A" commercial districts only the "sale and storage of goods, merchandise and commodities in stores or showrooms for sale on the premises at retail" were permissible.*fn2 It is readily apparent that City Council by its enactment of this amendment intended to avoid the effect of our decision in Bregman v. Exley. The effect of the addition of the phrase "for sale" etc., and the substitution of the conjunction "and" for the disjunctive "or" is to prevent the use of warehouses in areas zoned "A" commercial.

Carl Lehr, (the owner), and Sears, Roebuck & Company, (the lessee), appellants in the case before us, appeal from the order of the Court of Common Pleas No. 7 of Philadelphia which affirmed the refusal of the Philadelphia Zoning Board of Adjustment to grant a use permit for the business operation of a property in a class "A" commercial district.

The building which is the subject of this appeal is located at 6026-28 Pine Street, Philadelphia, and extends southward to Osage Avenue. In 1954 Sears applied to the city for a building permit to construct a loading platform on the property. Incidental to this application Sears was informed that a "use permit" was required for the building since it was no longer being put to its original use as a public garage.*fn3 As a result of an inspection of the premises it was discovered that Sears was allegedly using the property

[ 390 Pa. Page 209]

    as a warehouse in violation of the zoning ordinance, and had been so doing since June 25, 1947. The appellant, Sears, was therefore denied the use permit and it thereupon requested the Zoning Board of Adjustment to grant a variance. The variance was refused and the denial of the use permit was sustained. Sears then appealed to the Court of Common Pleas and argued that the premises were operated not as a warehouse but rather for the sale of goods on the premises at retail, a permitted use, and accordingly ...


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