Appeal from the Order of the Court of Common Pleas of Chester County in case of Commonwealth of Pennsylvania v. Amrit Lal, No. 637 Miscellaneous Term, 1975.
Ross A. Unruh, with him MacElree, Harvey, Gallagher & Kean, Ltd., for appellant.
David L. Kaufman, for appellee.
Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 35 Pa. Commw. Page 621]
Appellee was charged with violations of appellant's Borough Code and Building Code, arising from the use of the underground lower level of his home as living facilities for rent. The Chester County Court of Common Pleas found appellee not guilty of all charges after trial de novo on appeal from summary convictions. We must reverse and remand to the court of common pleas to enter an appropriate verdict.
The property in question is located within a "R-3" residential district, in which a single-family detached house is the only permitted use absent accessory and special exception uses irrelevant here. At the time appellee purchased the property in August 1972, the definition of "family" in appellee's Borough Code included "not more than 4 boarders, roomers or lodgers," but, by amendment effective February 14, 1973, that phrase was deleted. When appellee began occupancy, the lower level consisted of three unfinished rooms containing a washer, dryer and toilet facilities, but appellee immediately had panelling installed and allowed two individuals, a full-time housekeeper and a part-time handyman, to live in the lower level in at least partial return for their services. After both moved out near the end of 1972, appellee offered the rooms on a rental basis to other individuals, the first of whom began occupancy in January 1973. During the summer of 1975, in response to requests from individuals who had recently moved in, appellee installed a stove on the lower level for their use, and shortly thereafter, to prevent abuses of the use of his telephone upstairs, appellee had a coin telephone installed in the lower level.
On September 17, 1975, acting on the observations of neighbors as to possible occupancy of the premises by persons not in appellee's family, the Borough
[ 35 Pa. Commw. Page 622]
Building Inspector and Zoning Officer, Housing Inspector, and a police officer obtained permission to inspect the lower level from one of the individuals living there. They returned with a search warrant the next day. Appellee was informed by letter from appellant's Building Inspector and Zoning Officer, dated September 22, 1975, that he was in violation of appellant's zoning and building ordinances in that he was renting an apartment in a "R-3" district, renting an apartment in a cellar, and renting an apartment without having obtained a certificate of occupancy and building permit. A re-inspection on September 30, 1975, revealed no differences in the premises since the previous inspections. A criminal complaint was executed on September 30, 1975, charging appellant with:
Renting an apartment(s) which is not a permitted use in an R-3 Zoning District (West Chester Code § 112-13 et seq.). Renting an apartment(s) for living purposes, in a cellar, which is not permitted (West Chester Code § 112.8). Renting the apartment(s) without having obtained a certificate of occupancy required by the Zoning Ordinance (West Chester Code § 112-54 et seq.) or a building permit required by the Building Code (BOCA Basic Building Code § 113.1).*fn1
Appellee was fined $900.00 plus costs and sentenced to thirty days imprisonment by a district justice.
At the trial de novo, two of the individuals who occupied the lower level of appellee's home in 1975 testified that they were required to put up a security deposit upon beginning occupancy and paid a fixed weekly fee for which they received ...