Firth v. Scherzberg

• Decision Date: 02 January 1951
• Citation: 366 Pa. 443,77 A.2d 443
• Parties: FIRTH v. SCHERZBERG et al. Appeals of SCHERZBERG.
• Court: Pennsylvania Supreme Court

77 A.2d 443

366 Pa. 443

FIRTH v. SCHERZBERG et al.

Appeals of SCHERZBERG.

Supreme Court of Pennsylvania.

January 2, 1951

Rose A. Firth and others sued Karl Scherzberg, his wife, Greta Scherzberg, and others, to restrain defendants' use of certain unimproved land as a terminal parking place for tractor-trailer trucks. From a decree of the Court of Common Pleas No. 2 of the County of Philadelphia at No. 5980, March Term, 1949, Edw. P. Little, P. J., 34th Judicial District Specially Presiding, enjoining defendants from conducting their motor terminal business of such land and blocking or obstructing an abutting street, the named defendants separately, appealed. The Supreme Court, Nos. 239, 240 January Term, 1950, Jones, J., held that operation of a trucking business on the land was not a nuisance per se, but constituted a nuisance in fact in the nighttime, so as to require injunction against such operation from 8:00 P.M. to 7:00 A.M.

Decree modified and affirmed as modified.

Wesley H. Caldwell and Roper & Caldwell, all of Philadelphia, for appellant.

Norman R. Bradley, Samuel Kagle and Benjamin Fertik, all of Philadelphia, for appellees.

Before DREW, C. J., and ALLEN M. STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.

JONES Justice.

The plaintiff (joined later by a number of co-complainants) sued to restrain the defendants' use of an unimproved piece of land in Philadelphia as a terminal parking place for tractor-trailer trucks. The complaint averred that the use so made of the property constituted a nuisance per se, being in alleged violation of a municipal zoning ordinance, and also a nuisance in fact.

The defendants Scherzberg, husband and wife, jointly purchased a portion of the property in question in 1924. From the time of this acquisition, the husband used the property as a storage or parking place for his trucks in his business of local and long distance hauling by motor vehicle as a private and public carrier. In 1932 the Scherzbergs purchased an adjoining piece of property upon which they erected a relatively large garage which Karl Scherzberg likewise used in the operation of his business. The next year (1933) the City of Philadelphia enacted a zoning ordinance whereby the premises in question were included in a ‘ D’ Residential Zone which restricted the use of property within the designated classification to multiple dwellings such as row houses. Scherzberg's use of the property for truck storage and parking having antedated the enactment of the zoning ordinance, he continued thereafter to use it uninterruptedly for such purpose as a permissible nonconforming use under the terms of the ordinance. In 1940 the Scherzbergs leased the premises to the defendant, Harry A. Blades, for his use in storing and parking his trucks or tractor-trailers there in connection with his business as a carrier of merchandise by motor vehicle,-a business which he conducted as an individual until 1949 when he incorporated it as Harry A. Blades, Inc., here also a defendant. The Blades company has since continued to use the property for the same business purposes. The use of the property consists of the parking or storage there of tractors and trailers, particularly the latter which off times are interchanged between tractors according to the destinations of the cargoes and the economical disposition of the tractors. No freight is loaded or unloaded there; no garage work done; and no part of the premises is used by motor vehicles of anyone other than Harry A. Blades, Inc.

The learned chancellor filed an adjudication in which he held that the use of the property, so made or permitted by the the defendants, constituted a nuisance both per se and in fact and, thereupon, entered a decree nisi perpetually enjoining and restraining the defendants from conducting the motor terminal business operated by them on the premises in question. The decree also perpetually enjoins and restrains the defendants, their agents, servants or employees from blocking or obstructing a certain street upon which the property abuts. The court en banc, upon disposing of exceptions to the adjudication and decree nisi, entered a final decree in accord with the decree nisi, and the defendants Scherzberg brought these separate appeals.

We may as well at once dispose of the injunctive provision concerning supposed blocking or obstructing of the abutting street. The chancellor's action in such regard was purely gratutious. There is not a single finding of fact with respect to the use made of the street by the defendants. That portion of the decree must, therefore, be vacated as constituting an excessive exercise of the court's power. The matter of the abutting street is entirely foreign to the theory of the complaint.

As to whether the business conducted by the Blades company amounted to a nuisance is fact, the chancellor found that ‘ The coupling and uncoupling of tractors and trailers, the noise caused by the warming up of the large tractor motors, their acceleration, charging of tractor batteries, sounds of escaping air from the coupling and uncoupling of air brakes and their application, the shifting of gears, the switching of trailers, and muffler explosions and vibrations create great and disturbing noises, more disturbing during the hours between 10 P.M. and 6 A.M.’ and that ‘ The disturbance, vibration, and noise is regular and continuous throughout the night, except on Saturday and Sunday nights and in consequence thereof, Complainants and their families are disturbed in their rest and sleep and the quiet peaceful enjoyment and habitation of their homes is interfered with and permanently impaired.’ These findings are supported by substantial evidence and were approved by the court en banc. They are, therefore, binding upon us on appeal: see Woodbridge v. Hall, 366 Pa. 46, 76 A.2d 205, and cases there cited. It follows, as a matter of law, that the business conducted by the...