Appeal from decree of Court of Common Pleas of Allegheny County, July T., 1967, No. 752, in case of Edwin Lynch et al. v. John Gates et ux.
Ivan E. Birsic, with him John W. Latella, and Cauley, Birsic & Clarke, for appellants.
John J. Klein, with him Harvey E. Schauffler, Jr., for appellees.
Bell, C. J., Jones, Cohen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice jones. Mr. Justice Eagen took no part in the consideration or decision of this case.
The sole question involved on this appeal is whether certain property owners -- whose properties directly adjoin land being used in a manner violative of a borough zoning ordinance -- have sufficiently alleged in their complaint in equity such "special and peculiar" injury to their properties as entitles them to enforce the zoning ordinance.
Edwin Lynch and his wife, Irene, and Raymond Luptak and his wife, Dorothy, own properties located on Main Street, Munhall Borough, Allegheny County, which abut on both sides of property owned by John
Gates and his wife, Vivian. All the properties are located in an "A" Residence District wherein are permitted a "single detached dwelling, double houses and two-family dwelling" with a rear yard of at least 2,000 square feet. As averred, the Lynch and Luptak homes are single-family dwellings.*fn* The Gateses have constructed on their property a six-family apartment with a parking area in the rear for tenants' parking which is less than 2,000 square feet. It is averred that the Lynches and Luptaks endeavored without success to have the Borough take action to enforce its zoning ordinance against the Gateses.
The Lynches and Luptaks instituted an equity action against the Gateses in the Court of Common Pleas of Allegheny County to restrain them from permitting the occupancy of their property by more than two families. Preliminary objections filed by the Gateses were sustained by the court below and permission granted to file an amended complaint. Upon the filing of an amended complaint, the Gateses again filed preliminary objections which were again sustained and the complaint dismissed. From that decree the instant appeal was taken.
The law in this area is well-settled. In Burne v. Kearney, 424 Pa. 29, 32, 225 A.2d 892 (1967), we said: ". . . as a prerequisite to the attachment of equity jurisdiction, the adjoining or nearby property owner must aver -- and later prove -- that the alleged violation of the zoning ordinance has resulted in an injury not common to all the neighboring property owners but 'special and peculiar' to his property." See
also: Kunkle v. Zaleski, 417 Pa. 631, 208 A.2d 840 (1965); Phillips v. Griffiths, 366 Pa. 468, 77 A.2d 375 (1951); DeBlasiis v. Bartell & Oliveto, 143 ...