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HARVEY TAYLOR v. TOWNSHIP WILKINS (06/16/81)

decided: June 16, 1981.

HARVEY TAYLOR, INDIVIDUALLY, AND AS PRESIDENT OF PENN ERECTION AND RIGGING COMPANY, ET AL., APPELLANTS
v.
THE TOWNSHIP OF WILKINS, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of The Township of Wilkins v. Harvey Taylor, individually and as President of Penn Erection & Rigging Company and of Penn Derailment Service, and Penn Erection & Rigging Company, a corporation, and Penn Derailment Service, a corporation, No. GD 77-00261.

COUNSEL

Maureen Dunn Harvey, Wallace, Chapas & Gravina, for appellants.

John M. Means, Markel, Schafer & Means, for appellee.

President Judge Crumlish and Judge Rogers and Blatt, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 60 Pa. Commw. Page 66]

The Township of Wilkins, Allegheny County, brought suit in equity against Harvey Taylor, individually and as president of several enterprises by which Taylor conducted his businesses of erecting

[ 60 Pa. Commw. Page 67]

    steel structures, doing heavy rigging and clearing sites of train derailments at a property located in the township's commercial zoning district. The suit sought injunctive relief restraining Taylor from storing the detritus of his businesses, which included such things as crane parts and railroad ties, in the front yard of his property, contrary to the township zoning ordinance and directing him to erect a fence around that portion of his property lawfully to be used for storage, including along the fifty foot front set back line as required by another township ordinance. After hearing the chancellor, Judge Robert S. Grigsby, filed an adjudication and a decree nisi granting the relief sought by the township, which, after the dismissal of the exceptions, was entered as the final decree, from which Taylor has now appealed.

Taylor's principal defense below was that he was entitled as of right to use his front yard in nonconformity with zoning because he had been engaged in such use since 1957, a date before enactment of any regulations by the township; the chancellor on substantial evidence found the facts to be otherwise. Taylor's principal and only substantial contention on the occasion of this appeal is different: he now says that his use of the front yard for storage is and has always been a permitted use because the zoning requirement that front yards be "open and unobstructed" has reference only to obstructions by buildings, not by movable things such as he keeps there. A careful examination of the pleadings, especially the exceptions to the chancellor's adjudication, reveals that this issue was not raised in the trial court. It may not, therefore, be the subject of a question on appeal.

The defenses which were raised below were all addressed and properly disposed of in Judge Grigsby's adjudication as well as in the opinion of Judges

[ 60 Pa. Commw. Page 68]

Silvestri and Zappala on exceptions. We reproduce the latter:

"This suit arises out of an equity action filed by the Plaintiff, Township of Wilkins, against the Defendants, Harvey Taylor, Penn Derailment Service, Penn Erection and Rigging Company and Harvey Taylor as President of the aforementioned corporations, to compel compliance with certain municipal Zoning ordinances. In summary these ordinances require the enclosure by fence of any storage area Ordinance No. 549, and the existence of a 50 foot front yard set-back for commercial property Ordinance Nos. 542 and 303. After conducting hearings on the matter, the trial judge entered a decree inter alia, enjoining the said defendants from further violation of the ordinances and directing the Defendants to comply specifically with the provisions of Ordinance No. 549, (i.e. the erection of a fence to encompass the Defendants' storage area). From this Adjudication, the Defendants have filed Exceptions ...


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