Appeals, Nos. 44 and 45, March T., 1963, from order of Court of Quarter Sessions of Allegheny County, Dec. T., 1961 (Miscellaneous), Nos. 73 and 78, in cases of Robert W. Ellison, Hamilton Alderdice, A. W. Eick et al. v. Township of Mount Lebanon, and J. Harry Brindle, Patricia R. Brindle, his wife, Peter G. Coussoule et al. v. Same. Order affirmed.
John B. Nicklas, Jr. and Gustav W. Wilde, with them McCrady & Nicklas, for Ellison and Brindle, appellants.
Donald C. Winson, with him Frank L. Seamans, and Eckert, Seamans & Cherin, for Township of Mount Labanon, appellee.
David McNeil Olds, with him G. Donald Gerlach, and Reed, Smith, Shaw & McClay, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
Kaufmann, the intervening defendant below, is the owner of an 18 acre tract in Mt. Lebanon Township. At the time Kaufmann purchased this property it was zoned "R-1" or "R-2" Residential. In 1961 an ordinance was adopted by the Township Commissioners by a vote of 3 to 2, which rezoned a large tract or area, including 5.8 acres, of Kaufmann's total tract. The ordinance, enactment of which was opposed by many owners of property in the neighborhood, down-graded the tract to "C" Commercial. The purpose, objective and intent of the ordinance was to allow Kaufmann to erect on said 5 acre tract a department store.
Pursuant to Section 1502 of the First Class Township Code of June 24, 1931,*fn1 and within the thirty days time limit required by the ordinance, a number of protestants appealed to the Quarter Sessions Court of Allegheny County the legality of the ordinance.
The basis for the appeal was, and in this Court still is, the contention that the ordinance was illegal because it was not enacted by a vote of three-fourths of all the members of the Township Commission as required by the Township Code. Appellants contend that such a vote was required (a) under Section 3105 of the Township Code because they are the owners of 20 percent of all property within 100 feet of the area rezoned; and (b) under Article XV, § 1, of the Ordinance since they are the owners of 20 percent of all property within 200 feet of the property which was rezoned.
The Court below dismissed the appeal, because (1) the protestants had not brought themselves "factually" within the terms of Section 3105 of the Township Code; and (2) Article XV, § 1 of the Ordinance was in conflict with the Township Code and therefore invalid. From that Order of the Quarter Sessions Court, two protestants took the present appeal to this Court.
Section 1502 of the Township Code reads in pertinent part: "Complaint as to the legality of any ordinance*fn2 or resolution may be made to the court of quarter sessions ... within thirty days after any ordinance or resolution takes effect. The ...