Appeal from decree of Court of Common Pleas of Lycoming County, May T., 1963, No. 15, in case of Borough of Muncy v. Vincent R. Stein, executor of last will and testament of Harry A. Stein, deceased.
John P. Campana, with him Campana & Campana, for appellant.
William E. Nichols, with him Furst, McCormick, Lynn, Reeder & Nichols, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen.
This is an appeal from a decree of the Court of Common Pleas of Lycoming County perpetually enjoining Vincent Stein, appellant, from using premises at 313 South Main St., Muncy for commercial purposes.
On January 4, 1947 the Borough of Muncy enacted a zoning ordinance by which the east side of South Main Street north of New Street was designated as a commercial zone. On June 23, 1960 the Borough revised that ordinance to change the area mentioned above from commercial to residential. The revised ordinance was to become effective July 31, 1960. Subsequent
to June 23 but prior to July 31, appellant leased the premises at 313 South Main Street, within the designated area, and began using it as a used car lot.
On May 29, 1962 the Borough filed an action in equity in the Court of Common Pleas of Lycoming County seeking to restrain appellant's commercial use of the land. The court, 9 Lycoming 13 (1963), granted appellant's motion for summary judgment on the theory that the Borough ordinance defining nonconforming use*fn1 referred to use on the effective date of the act or amendment and that this use began prior to the effective date. In ruling upon exceptions to the decree nisi, the court en banc stated, 9 Lycoming 108, 111 (1963): "The date of the enactment of the Muncy Zoning Ordinance is not a factor or element in enforcement of the provisions for the Zoning Ordinance sets forth the effective date of the ordinance as the determining element. The Zoning Ordinance specifically sets forth that the use of the land existing on the effective date of the ordinance, i.e., July 31, 1960, constitutes a nonconforming use and therefore can be continued." No appeal was taken by the Borough.
On August 13, 1963, subsequent to the filing of the decree nisi (January 31, 1963) but prior to the decision on the Borough's exceptions (December 10, 1963), the Borough filed another complaint in equity in the Court of Common Pleas of Lycoming County. This complaint and a later one did not seek relief on the ground that the commercial use of the premises violated the revised zoning ordinance but rather on the basis of Ch. XVIII, § 41 of the amended ordinance. That section states: "(A) The nonconforming use of land (where such use
is the principal use of the lot and no main structure is involved) may be continued for a limited time in accordance with the following provisions. (1) Such nonconforming use shall be discontinued no later than three (3) years after being made nonconforming, either by the initial passage of this ordinance or by a later amendment thereto. (2) No expansion or extension of such nonconforming use shall be permitted. (3) If any such nonconforming use is discontinued, the future use of the said land shall be in conformity with the provisions of this ordinance." The Borough's theory was ...