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FRED C. DIEHL v. BERNARD W. LOCKARD (04/13/78)

decided: April 13, 1978.

FRED C. DIEHL, CLIFTON C. HOUTZ, ASBURY W. LEE, III, PHILIP W. RHINEHART, AMADO LUGUE, AND RONALD B. STRATTON,
v.
BERNARD W. LOCKARD, LARRY G. LOCKARD AND ALAN W. LEE, T/D/B/A TRI-L CO., A PARTNERSHIP, AND PIZZA HUT OF CLEARFIELD INC., APPELLANTS



No. 39 April Term, 1977, Appeal from the Order of Court Entered July 23, 1976 of the Court of Common Pleas of Clearfield County, Pennsylvania, Civil Action -- Equity at No. 76-15 EQU.

COUNSEL

Robert D. Douglass, Indiana, for appellants.

Charles C. Brown, Jr., State College, with him McQuaide, Blasko & Brown, State College, for appellees.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price and Spaeth, JJ. Hoffman and Spaeth, JJ., dissent. Watkins, former President Judge, and Van der Voort, J., did not participate in the consideration or decision of this case.

Author: Per Curiam

[ 254 Pa. Super. Page 113]

This is an appeal from the order of the Court of Common Pleas sitting in equity making permanent a preliminary injunction restraining the construction of a "Pizza Hut".

The Borough of Clearfield, the County seat of Clearfield County, has a population of about 9000 people and is entirely surrounded by Lawrence Township. Pennsylvania Route 879 passes through the Borough in a westwardly direction through a residential area known as the "Old Town Road" section. The residential area is located primarily within the Borough although its western boundaries are within Lawrence Township. The court below stated: "This area has for many years been recognized as one of the most desirable single family residential areas Clearfield has to offer."

The court below further describes the area as follows: "Immediately to its west along Route 879 commercial establishments have grown over the years to the extent that, with but few exceptions, from the western boundary of the residential area the use of the real estate is commercial. The boundary between the "Old Town Road" section and the commercial section is clearly delineated. To the east, contained within the residential area are large, very desirable single family units and to the west, the commercial enterprises mentioned above, including fast food establishments, known as "McDonald's" and "Winky's".

The property that is the basis of this appeal is located within the residential area but abuts the beginning of the western commercial area. This was a dwelling and the property was purchased by the appellants for the purpose of removing the existing residence and the construction of a

[ 254 Pa. Super. Page 114]

"Pizza Hut" restaurant which clearly would be an extension of the commercial character of the area.

The testimony shows that the "Pizza Hut" will be constructed in such a manner that it would be surrounded by a parking area and in addition to the service of food in the restaurant and for taking out provides for the sale of beer and wine. Immediately across the street from the site in question is a Children's Home which houses fifteen children and has been in existence for many years.

The area which lies within the Borough limits is zoned residential. The area in Lawrence Township where the property in question lies has not enacted a zoning ordinance. Even if approval of zoning authorities was given to the establishment it does not affect the power of a court of equity to enjoin it as a nuisance. Mazeika v. American Oil Company, 383 Pa. 191, 118 A.2d 142 (1955). The court below permitted testimony that the township was working on such an ordinance and the working maps which had been in existence since 1973 included this area as residential. The appellants complain ...


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