Appeals from the Order of the Court of Common Pleas of Warren County, in case of John J. Nalbone, Jr., and Louis J. Nalbone v. Borough of Youngsville, No. 276 of 1985.
Carl N. Moore, Knox, Graham, McLaughlin, Gornall and Sennett, Inc., for appellants.
Joseph C. Barnhart, Altomare, Barnhart & Rockwell, for appellee.
William J. Kubiak, McDowell, McDowell, Wick and Daly, for amicus curiae, Pennsylvania Oil and Gas Association.
Judges Barry, Colins (p) and Palladino, sitting as a panel of three. Opinion by Judge Colins. Judge Palladino dissents.
[ 104 Pa. Commw. Page 624]
John J. Nalbone, Jr. and Louis J. Nalbone (appellants) are property owners in the Borough of Youngsville, Pennsylvania (Borough). Appellants intended to drill oil and/or gas wells upon their property but were prevented from doing so by the operation of two ordinances enacted by the Borough as amendments to the existing zoning ordinance. The first ordinance, entitled the Youngsville Oil and Gas Development Permit Ordinance (Ordinance No. 456), required all persons to obtain a conditional use permit for the "drilling, fracturing, shooting and other treatment" of oil and/or gas wells. The second ordinance (Ordinance No. 457) designated
[ 104 Pa. Commw. Page 625]
an "oil production district" on the official zoning map of the Borough required compliance with the provisions of Ordinance No. 456 for oil and/or gas production in this district.
On June 12, 1985, appellants challenged the validity of the above ordinances in the Court of Common Pleas of Warren County, asserting that: (1) the Oil and Gas Act, Act of December 19, 1984, P.L. 1140, 58 P.S. §§ 601.101-601.605, had preempted the field of oil and gas mine regulation so as to supersede local efforts to so regulate and that (2) the ordinances were confiscatory and thus unconstitutional because they effectively acted to deprive appellants of their property without due process of law. Appellants' Motion for Summary Judgment was denied by the trial court and the court, upon its own motion,*fn1 granted summary judgment for the Borough. The trial court determined that the ordinances were a legal exercise of the Borough's police power enacted for the preservation of the health, safety and general welfare of Borough residents and that the restrictions imposed by the ordinances were reasonable and thereby constitutional. Appellants' appeal of that order, as well as their appeal of the trial court's denial of their motion for reconsideration, consolidated for our review,*fn2 followed.
To uphold the summary judgment, there must be not only an absence of genuine factual issues, but also
[ 104 Pa. Commw. Page 626]
an entitlement to judgment as a matter of law. Pa. ...