Appeal from decree of Court of Common Pleas of Butler County, Sept. T., 1962, No. 5, in case of Penn Township v. Yecko Bros., George C. Schmidt and Ada A. Schmidt.
Carmen V. Marinaro, for intervening appellant.
David M. Harrison, with him Saul J. Bernstein, and Harrison & Louik, for appellees.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Justice Roberts concurs in the result.
For a period of approximately three years the Township of Penn, appellant, considered the advisability of adopting a zoning ordinance. Subsequently, on June 28, 1962, a zoning ordinance (Ord. No. 39) was advertised. It was enacted by the township supervisors on August 13, 1962, to be effective on August 23, 1962.
On July 2, 1962, George Schmidt and Ada Schmidt entered into a written agreement with Albert Yecko and Mary Yecko, whereby they agreed to sell four acres of land to the Yeckos. The agreement contained a provision that if there was an ordinance of the township in existence prohibiting "a used auto parts business or wrecking yard being conducted in a building," all the Yeckos' hand money was to be returned and the agreement was to become null and void.
On July 9, 1962, the appellees, Yecko Bros., appeared at a public meeting of the township supervisors and requested approval for the establishment of an automobile wrecking and parts business. They were advised to contact the chairman of the planning and zoning commission since all such proposals had to be submitted to that commission for its approval pending rejection or adoption of the zoning ordinance by the board of supervisors. (Yecko Bros. were also advised that a public hearing on the proposed zoning ordinance was to be held on July 17, 1962.) Without obtaining this approval, on July 27, 1962, Yecko Bros. moved on the property in question, installed a used bus as an office, placed wrecked automobiles on the premises and erected a sign "Yecko Bros. Automobile Parts." Between that date and August 4, 1962, Yecko Bros. transacted business by selling and delivering parts for used automobiles and did a total business of $109.50.
On August 4, 1962, Sara Moody, a private citizen of Penn Township filed a complaint in equity seeking a preliminary and permanent injunction against the
appellees restraining them from maintaining an automobile wrecking and parts yard. She based her complaint upon an ordinance of the Township of Penn enacted December 5, 1952, and still in effect, entitled, "An Ordinance to promote the public health, safety, morals, and general welfare of Penn Township," which ordinance prohibited anywhere in Penn Township any automobile graveyard or junkyard for the storage or parking of used automobiles or automobile parts and decreed same to be a public nuisance.
On August 4, 1962, the lower court granted a preliminary injunction enjoining the present appellees from establishing and maintaining their automobile junkyard. On October 29, 1962, a hearing was held and the preliminary injunction granted on August 4, 1962, was dissolved. At this hearing the Township of Penn appeared and received permission to intervene as a party plaintiff. Subsequently, as an intervening plaintiff, Penn Township, filed its complaint and averred that on August 13, 1962, it had enacted a zoning ordinance which became effective August 23, 1962, and which did not permit an automobile wrecking yard on the property of the appellees.
On October 29, 1962, after the hearing at which the preliminary injunction was dissolved, the Yeckos consummated the purchase of the property from the Schmidts. At the hearing itself the lower court determined that because no special damages to the individual plaintiffs (Sara Moody et al.) were alleged or proved, they had no standing in a court of equity to restrain a public nuisance. The lower court further held that the ordinance of 1952 which prohibited the establishment ...