Appeal, No. 83, March T., 1959, from decree of Court of Common Pleas of Erie County, Nov. T., 1958, No. 3, in case of City of Erie v. Gulf Oil Corporation. Decree affirmed.
Gerald J. Weber, City Solicitor, with him Thomas Mszanowski, Assistant City Solicitor, for appellant.
Robert N. Spaeder, with him John T. Clary, and Marsh, Spaeder, Baur, Spaeder & Schaaf, for appellee.
Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.
OPINION BY MR. JUSTICE BELL
The City of Erie filed this complaint in equity in behalf of its citizens who are residents of the area affected by the matter in controversy.
Defendant is the owner of a parcel of ground at the northern terminus of Pennsylvania Avenue in the City of Erie, the acreage of which is undisclosed. The property is presently being used for approximately 13 oil and gasoline storage tanks with capacities of from 15,000 to 425,000 gallons. Defendant proposes to erect
on this property a gasoline storage tank with a capacity of 1,800,000 gallons. The property is within the area designated for zoning as "Heavy Industry" under the Zoning Ordinance of the City of Erie dated December 7, 1937, as amended, and said ordinance contains no prohibition against the construction of oil or gasoline storage tanks of any size in the City of Erie.
The lower Court, in a very able opinion by Judge BURTON R. LAUB, sustained defendant's preliminary objections in the nature of a demurrer, and dismissed the complaint unless the City amended it within 20 days. The City did not amend its complaint, but instead took this appeal.
The City's complaint averred that the construction of such a large storage tank would constitute a public nuisance for the following reasons: (a) The location of the proposed tank is less than 1,000 feet from a large number of dwelling houses; (b) the size of the proposed tank represents a vast enlargement over any tank in Erie; (c) oil and gasoline are highly volatile, flammable and explosive, and when set aflame are extremely difficult to control; (d) an explosion has the capacity to cause large and wide-spread injuries and destruction; (e) the proposed construction would add to the menace of explosion and fire; (f) the proposed construction would depreciate the value of neighboring properties; (g) the proposed construction would present an ever present mental hazard to citizens within the area of possible danger; (h) the proposed construction would present a fire and explosion hazard beyond the capacity of control by the fire department of the City; (i) the proposed construction would constitute a public nuisance.
Preliminary objections in the nature of a demurrer "admit as true all facts which are well and clearly pleaded, but not the ...