Appeal from the Order of the Court of Common Pleas of Washington County in case of Charles M. Harasty, t/d/b/a Harasty Coal Company v. Borough of West Brownsville, No. 7418 in Equity, Book 43, Page 351.
David S. Posner, for appellant.
Grayce R. Kovacs, with her D. Keith Melenyzer, for appellee.
Judges Wilkinson, Jr., Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt. President Judge Bowman did not participate in the decision in this case. Judge DiSalle did not participate in the decision in this case.
[ 50 Pa. Commw. Page 188]
Charles Harasty (appellant) appeals here from an order of the Court of Common Pleas of Washington County which affirmed its decree nisi dismissing his case against the Borough of West Brownsville (Borough).
The appellant brought an equity action seeking to enjoin enforcement of the Borough's vehicle-weight-limit ordinance, which restricts the gross weight of any vehicle operated on Borough streets to 16,000 pounds or 8 tons. He asserted that the ordinance was invalid and was being applied in a discriminatory manner against him so as to prevent the lawful use of land owned by him in the Borough. A hearing was held at which he was the only witness, and when he rested his case, after giving his testimony, the Borough then moved to dismiss, arguing that he had not proved his allegations. The trial judge granted the motion to dismiss and later issued an opinion to which the appellant took exceptions.*fn1 An en banc court dismissed the exceptions, and this appeal followed.
In essence, the appellant is appealing from the refusal to take off a compulsory non-suit entered under Pa. R.C.P. No. 1512. And, as our Supreme Court has held,
We are therefore guided by the principles that a non-suit should be entered only in a clear case, and, on appeal from the refusal to take off a compulsory non-suit, the plaintiff must be given the benefit of all favorable testimony and every
[ 50 Pa. Commw. Page 189]
reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of plaintiff.
Schwartz v. Urban Redevelopment Authority, 411 Pa. 530, 533, 192 A.2d 371, 372 (1963). We must look, then, to the appellant's testimony.
The appellant testified that he had leased (with an option to purchase) a parcel of land located in the Borough and along the Monongahela River. His lease was obtained in February 1978, at which time the property was crossed by two unopened and overgrown public streets, Goodloe Street and Axton Alley. He thought that Axton Alley had been conveyed to his predecessor in interest, but he was aware that Goodloe Street belonged to the Borough. The property had been used in the 1940's as a sand and gravel plant, and much of the old equipment and facilities remained on it, but the plant had apparently been abandoned for ...