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BURNE v. KEARNEY (01/20/67)

decided: January 20, 1967.

BURNE, APPELLANT,
v.
KEARNEY



Appeal from order of Court of Common Pleas of Lackawanna County, March T., 1966, No. 7, in case of James P. Burne and Mary Louise Burne v. Frank H. Kearney, Mary M. Kearney and Thomas J. Kearney.

COUNSEL

Joseph E. Gallagher, with him O'Malley, Morgan, Bour & Gallagher, for appellants.

James W. McNulty, with him William J. Kearney, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Chief Justice Bell.

Author: Jones

[ 424 Pa. Page 30]

James P. Burne and Mary Burne, his wife (appellants), own a dwelling house in Dunmore, Lackawanna County. Diagonally across the street from appellants' property is a property owned by Frank H. Kearney, Mary Kearney and Thomas Kearney (appellees), which property is being used for funeral home purposes

[ 424 Pa. Page 31]

    which use is advertised by an electrically illuminated business sign located in the front yard of the property.

Under a Dunmore zoning ordinance of 1942 the district in which both properties are located is designated as an "A" zone intended primarily for residential purposes and on a map which is part of the Dunmore zoning ordinance of 1963 the district is designated as an R-1a district intended for "single-family residential urban" use.

Appellants instituted an action in equity against appellees in the Court of Common Pleas of Lackawanna County to (a) enjoin appellees' use of their property as a funeral home and (b) enjoin appellees' violation of the zoning ordinance of 1963. Appellees, alleging the existence of an adequate remedy under the zoning ordinance and an usurpation of the rights of the borough to enforce the ordinance, by preliminary objections challenged the jurisdiction of equity.

The court below upheld the preliminary objections and dismissed appellants' complaint. The rationale of the ruling of the court below was that the medium for testing the validity of the zoning ordinance or the method of its administration is within the procedural framework of the ordinance and not in equity.*fn1

Appellants do not challenge the validity of the ordinance ; on the contrary, appellants take the position that the ordinance is valid and seek to have its provisions enforced.

To the general rule that zoning ordinances provide adequate procedural remedies for testing their validity and application and ...


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