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TOWNSHIP OHIO v. BUILDERS ENTERPRISES (04/23/71)

decided: April 23, 1971.

TOWNSHIP OF OHIO
v.
BUILDERS ENTERPRISES, INC.



Appeal from the order of the Court of Common Pleas of Allegheny County, Civil Division, No. S.A. 1138 of 1969, in case of Builders Enterprises, Inc. v. Zoning Hearing Board of Ohio Township. Appeal transferred September 14, 1970 to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Michael J. Boyle, with him Meyer, Unkovic & Scott, for appellant.

Gilbert E. Morcroft, for appellee.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Rogers. Opinion by Judge Mencer. Dissenting Opinion by Judge Kramer. Judge Manderino joins in this dissent.

Author: Mencer

[ 2 Pa. Commw. Page 40]

In Dively v. Tanner, 189 Pa. Superior Ct. 635, 151 A.2d 665 (1959), it was decided that the court below

[ 2 Pa. Commw. Page 41]

    properly directed a township building inspector to issue a plumbing permit. Dively was the owner of approximately forty acres of land in Ohio Township, Allegheny County, and was using approximately five acres of this land for the operation of a house-trailer camp. In December, 1967, Builders Enterprises, Inc. (Builders) acquired Dively's forty acres of land and subsequently made application for a zoning certificate for a nonconforming use so that it might expand the house-trailer camp over the remaining thirty-five acres of land purchased from Dively. The zoning inspector refused the nonconforming use certificate as to all but the approximately five acres of the property in current use as a trailer camp. On appeal the Zoning Hearing Board of Ohio Township affirmed the zoning inspector's decision and Builders then appealed to the Court of Common Pleas of Allegheny County. That court reversed the Zoning Hearing Board and ordered the necessary permits to be granted. Its decision was based on the belief that Dively v. Tanner, supra, decided that a nonconforming use existed as to the entire forty-acre tract and was res judicata on this issue. We find the lower court to be in error in this regard and must therefore reverse.

Under the doctrine of res judicata, a judgment is conclusive as between the parties and their privies in respect to every fact which could properly have been considered in reaching the determination and in respect to all points of law relating directly to the cause of action and affecting the subject matter before the court. Wallace's Estate, 316 Pa. 148, 174 A. 397 (1934). As stated in Cameron Bank v. Aleppo Twp., 338 Pa. 300, 304, 13 A.2d 40, 41 (1940): "To constitute res judicata there must be: (1) Identity in the thing sued for: (2) identity of the cause of action; (3) identity of persons and parties to the action; (4) identity of the quality in the persons for or against whom the claim is made." Stevenson v. Silverman, 417 Pa. 187, 208 A.2d 786,

[ 2 Pa. Commw. Page 42]

    cert. den. 86 S. Ct. 76, 382 U.S. 833, 15 L. Ed. 2d 76 (1965). The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights. Callery v. Blythe Township Municipal Authority, 432 Pa. 307, 243 A.2d 385 (1968).

From these criteria it must be concluded that the rule of res judicata is entirely irrelevant here. When the causes of action in the first and second actions are distinct, or, even though related, are not so closely related that matters essential to recovery in the second action have been determined in the first action, the doctrine of res judicata does not apply. Likewise, before the doctrine may be applied, there must be an identity of the persons or parties and an identity of quality in the persons for or against whom the claim is made. Helmig v. Rockwell Mfg. Co., 389 Pa. 21, 131 A.2d 622 (1957), cert. den. 78 S. Ct. 46, 355 U.S. 832, 2 L. Ed. 2d 44, reh. den. 78 S. Ct. 146, 355 U.S. 885, 2 L. Ed. 2d 115; Melcher v. Pennsylvania Threshermen and Farmers' Mutual Casualty Insurance Company, 389 Pa. 125, 132 A.2d 190 (1957).

In Dively v. Tanner, supra, an action was brought in mandamus to require Herbert Tanner, as township plumbing inspector, to issue a plumbing permit with respect to one building located on the five acres being used as a trailer camp. The court was confronted with the question of whether Dively had established a nonconforming use as to the five-acre plot prior to the enactment of the applicable zoning ordinance. The parties did not litigate, nor ...


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