Appeal from decree of Court of Common Pleas of Delaware County, No. 8523 of 1966, in case of Township of Ridley v. Romana Pronesti and Vincent Pronesti.
C. Norwood Wherry, for appellants.
R. Paul Lessy, with him Paul R. Duke, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell and Mr. Justice Roberts dissent.
Appellant, Romana Pronesti, is the owner of a dwelling house located in an area zoned "B" Residential under the Ridley Township zoning ordinance. Her son, Vincent Pronesti, the other appellant, resides in his mother's home and is licensed by the Commonwealth as a real estate broker. Vincent commenced the operation of a real estate broker's office in the home and erected a sign on the premises to that effect. The township, contending that such a use was not permitted in a "B" Residential district, commenced an action in equity seeking to enjoin the operation. Vincent
has not actively engaged in the real estate business since service of the complaint, but intends to resume his operation on the premises should this litigation terminate favorably.
The pertinent section of the zoning ordinance permits, inter alia, single family detached dwellings in "B" Residential districts. In addition, the ordinance allows accessory uses "customarily incidental" to any of the permitted uses. By way of amplification, the ordinance provides that such "customarily incidental" uses "shall be understood to include the professional office or studio of a doctor, dentist, masseur, teacher, artist, architect, musician, lawyer, magistrate or practitioner of a similar character, or rooms used for home occupations, including dressmaking, millinery, laundry or similar handicrafts; Provided, the office, studio or occupational room is located in a dwelling in which the practitioner resides, or in a building accessory thereto; . . .".
The chancellor heard the testimony and made an adjudication and decree nisi in which he enjoined Vincent from maintaining and operating a real estate office on the premises and his mother from permitting such an operation. The chancellor's decree nisi was based solely on his conclusion that only the owner of the dwelling could conduct a permitted accessory business and Vincent, not being the owner, was not entitled to an accessory use. Both sides filed exceptions and the court en banc adopted the chancellor's findings of fact, dismissed the exceptions and entered a final decree enjoining Vincent's operation and his mother's permitting him to operate; this appeal followed.
The court en banc did not consider the question of ownership of the property, holding that the language of the ordinance excludes the operation of a real estate office in the district, irrespective of whether conducted by the owner of the residential structure or some other
resident.*fn1 Appellants contend that this procedure by the court en banc constitutes error. They argue that the court en banc adopted the chancellor's findings of fact but then reached a conclusion on a different ground "without making a new finding or conclusion or pointing to any evidence ...