Appeal from the Order of the Court of Common Pleas of Lackawanna County in the case of City of Scranton v. Saul Baiderman and/or Wallace Putkowski, No. 81 Equity 30.
Joseph E. Gallagher, Bour, Gallagher & Foley, for appellant.
Albert B. MacKarey, with him Edmund J. Scacchitti, City Solicitor, and Virginia Leo Sirotnak, Assistant City Solicitor, for appellee.
Judges Blatt, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Williams, Jr.
[ 74 Pa. Commw. Page 368]
Wallace Putkowski has appealed from the issuance of a preliminary injunction by the Court of Common Pleas of Lackawanna County. The trial court's order preliminarily restrained Putkowski from operating a mechanical car-crusher at his junkyard in the City of Scranton.
Putkowski owns and operates a junkyard in a district of Scranton zoned "C-1 Community Commercial," a classification that disallows junkyards as a permitted use under Scranton's zoning ordinance of 1965. Putkowski purchased the junkyard in early 1979 from one Saul Baiderman, who, in turn, had acquired the yard in 1970 from a Frank Milewski. Because Milewski had operated the junkyard for many years prior to the 1965 zoning ordinance, the operation was allowed to continue after the ordinance, under both Milewski and Baiderman, as a lawful nonconforming use of the site.*fn1
During the nine years that Baiderman operated the junkyard, he had, on four occasions, engaged the use of a portable, mechanical car-crusher owned by Wallace Putkowski. On those four occasions, Putkowski brought his crusher to the yard to mechanically crush and compress junk automobiles, the purpose being to alleviate space problems caused by the accumulation of autos. Except for the four times Baiderman hired the use of the mechanical crusher, he had to process his junk vehicles by manual disassembly and the use of a crane with a "big drop."
[ 74 Pa. Commw. Page 369]
After Putkowski had purchased the junkyard in early 1979, he applied to the City of Scranton's Board of Zoning Appeals (Board) for a certificate of nonconforming use. That application, which was filed on April 20, 1979, stated that the yard was used for "the storage of scrap materials, junk motor vehicles and equipment used in the processing of scrap and waste materials." Included among the nonconforming uses Putkowski sought to have certificated was the storing, packing and disassembling of junk, and "the use of any equipment to accomplish that purpose." While awaiting a decision on his application, Putkowski began operating his mechanical car-crusher at the junkyard.*fn2
Putkowski's crusher enabled him to process seventeen junk automobiles every seventy minutes; whereas the two previous owners of the yard, without the use of a mechanical crusher, could process only five or six autos a day. Based on that consideration, the Board treated Putkowski's application, to the extent that it involved the mechanical car-crusher and some other additions to the yard, as involving a new use. For that reason, and to that extent, the Board denied the application. The Board's decision was made on December 3, 1979, and resulted from hearings that were held in May and September of 1979.*fn3 It should be pointed out that the Board, in reaching its decision, found that Putkowski's application was completely
[ 74 Pa. Commw. Page 370]
based on the full-time use of the mechanical crusher as a central component of his junkyard business.
On January 14, 1980, the Board sent Putkowski a letter that indicated the granting of a limited certificate of nonconforming use. The body ...