decided: August 6, 1968.
Appeal from decree of Court of Common Pleas of Delaware County, No. 12770 of 1966, in case of Charles A. Allen, Margaret D. Allen, his wife, William H. Baumgartner et al. v. Birmingham Township and James Julian, Inc.
John F. Cramp, with him Cramp and D'Iorio, for appellants.
Charles C. Keeler, for township, appellee.
Guy G. deFuria, with him deFuria and Larkin, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Justice Roberts concurs in the result.
Author: Per Curiam
[ 430 Pa. Page 596]
This is an action in equity filed by appellants, residents of Birmingham Township, Delaware County, seeking to (1) enjoin appellee, James Julian, Inc., owner of a tract of land in said township from removing earth from said land as an improper commercial enterprise within an area zoned for solely residential purposes, and (2) void a contract negotiated between James Julian, Inc. and appellee, Birmingham Township, which contract permitted the enterprise complained of by appellants.
James Julian, Inc. is a general contractor engaged in the construction of a federal highway known as Interstate 95. The earth which Julian was removing from its tract in Birmingham Township was being used as "fill" in the construction of this highway.
The contract between James Julian, Inc. and the township allows this excavation to continue for two years commencing August, 1966. However, the president of James Julian, Inc. testified that the work would only continue until June or July, 1967, thereby indicating that the full two years would not be necessary.
We have been informed that at the present time James Julian, Inc. has completed excavation of the subject land. Hence, since the alleged unlawful conduct
[ 430 Pa. Page 597]
on the part of appellees has ceased to exist, and since there remains nothing for this Court to enjoin, the issues involved in this appeal are now moot. Our action in refusing to review the merits of the present controversy should in no way be interpreted by the parties to be an approval or disapproval of the lower court's failure to grant an injunction. Likewise, this should not be construed as a sanctioning or licensing of the alleged unlawful conduct on the part of appellee, James Julian, Inc.
The appeal is dismissed. Each party to bear own costs.
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