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SHOMO v. DERRY BOROUGH (04/07/72)

decided: April 7, 1972.

SHOMO, ET UX.
v.
DERRY BOROUGH



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Edward E. Shomo and Nancy L. Shomo, his wife v. Derry Borough, a Municipal Corporation or Body Politic, No. 3784, in Equity.

COUNSEL

John M. Campfield, with him Henry E. Shaw and Scales & Shaw, for appellant.

William C. Stillwagon, with him Leonard R. Reeves, for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Kramer. Concurring Opinion by President Judge Bowman. Judges Mencer and Rogers join in this concurring opinion.

Author: Kramer

[ 5 Pa. Commw. Page 218]

This is an appeal from an Order of the Court of Common Pleas of Westmoreland County declaring as unconstitutional certain provisions of Derry Borough Ordinance No. 381 insofar as they are applicable to mobile homes.

The record indicates that the realty located at 215 Chestnut Street, Derry Borough, was owned by appellees' family since 1934. In 1965, Edward E. and Nancy L. Shomo (husband and wife) purchased the above-mentioned realty. Prior to the date of the deed of conveyance, the family home located thereon was destroyed by fire. Following the said conveyance, appellees cleared the land of the destroyed premises. The Ordinance (No. 381) in question was passed by Council on October 7, 1968. Some eight months prior to the passage of this Ordinance, appellees permitted the placement and use by a tenant of a mobile home upon the land. The mobile home remained in use upon the land until some time in the latter half of the month of April 1970. At that point the mobile home was removed from the land, leaving the land unoccupied for a week or so. On April 28, 1970, another mobile home was brought onto the land and was occupied by a tenant of the appellees. On May 15, 1970, appellees filed with the Borough Secretary an application for a written permit

[ 5 Pa. Commw. Page 219]

    allowing the occupancy of a mobile home placed upon land within the Borough limits. The application filed by the appellees was rejected by the Borough Council on May 19, 1970, for the reason that the mobile home located upon appellees' property failed to satisfy the area requirement of Ordinance No. 381.

On June 16, 1970, the appellees filed a Complaint in Equity to enjoin the enforcement of Ordinance No. 381 on the grounds that it was an arbitrary, and therefore unconstitutional exercise by Derry Borough of its police powers. Appellees further asserted that the Ordinance was discriminatory in that it prevented them from using their property as they saw fit. The lower court found that the Ordinance "by its application, although indirectly, prohibits by legislation the legitimate use of mobile homes in Derry Borough." The court further found that this prohibition by ordinance of a property owner's free use of his property cannot be sustained under the police power. Appellant filed exceptions before the lower court on March 24, 1971, and on the 14th of September, 1971, they were dismissed by the Court en banc. Appellant appealed thereafter to this Court, arguing that the Ordinance was a valid exercise of its police powers as granted by The Borough Code, Act of February 1, 1966, P.L. 1656, 53 P.S. § 45101, et seq., and that the appellees had failed to meet the burden of proving the unconstitutionality of Ordinance No. 381.

Although the Borough contends that Ordinance No. 381 was passed for the purpose of "establishing certain size standards for single family dwellings," the court below properly found that the real purpose was to regulate and control the use of house trailers and mobile homes. The record discloses that the largest house trailer or mobile home rig permitted upon the public roads of the Commonwealth is 12 feet wide by 75 feet

[ 5 Pa. Commw. Page 220]

    long. However, an allowance for the trailer hitch in the amount of 36 square feet must be made in the total computation. Therefore, the largest mobile home which could be transported to the Shomos' lot, or to any lot in Derry Borough, could not exceed 864 square feet. This is less than the minimum requirements of Ordinance No. 381, as is discussed below. Section 1 of the Ordinance establishes definitions for the terms "mobile home," "house trailer," and "person." Section 2 establishes that if a mobile home or house trailer is used for living or sleeping purposes for a period exceeding thirty days in any one year, it shall be considered as a single family dwelling for all purposes of the Ordinance. Section 3 of the Ordinance sets forth minimum floor areas for one, one and a half, and two-story dwellings and specifically provides that a dwelling with "one floor without basement" contain a minimum floor area of 900 square feet. Section 4 of the Ordinance sets forth specific room size requirements, e.g., "(f) Bedroom 140 square feet." Section 4 does not state whether or not these room sizes are minimum or maximum requirements. However, the lower court determined these provisions to be minimum requirements. Section 5 provides that no such dwelling be placed or constructed upon any lot having an area of ...


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