Groff v. Borough of Sellersville

• Decision Date: 28 January 1974
• Citation: 314 A.2d 328,12 Pa.Cmwlth. 315
• Parties: Steward S. GROFF, Appellant, v. The BOROUGH OF SELLERSVILLE, Appellee.
• Court: Pennsylvania Commonwealth Court

Page 328

314 A.2d 328

12 Pa.Cmwlth. 315

Steward S. GROFF, Appellant, v. The BOROUGH OF SELLERSVILLE, Appellee.

Commonwealth Court of Pennsylvania.

Argued Oct. 2, 1973.

Decided Jan. 28, 1974.

Randolph A. Scott, Perkasie, for appellant

Samuel G. Moyer, Sellersville, for appellee.

Before BOWMAN, President Judge, and CRUMLISH, Jr., KRAMER, WILKINSON, MENCER, ROGERS and BLATT, JJ.

OPINION

BLATT, Judge.

Steward S. Groff is the owner of a large two-story frame building which is located in the Borough of Sellersville (Borough). The building was erected in 1910 for use as a cigar box factory, but is currently used by Groff as a warehouse to store second-hand merchandise which is used in Groff's business. The building is located in a residential neighborhood, with the nearest structure approximately twenty feet away, and is supplied with neither electricity nor heat.

By resolution on January 11, 1971, the Borough Council of Sellersville, pursuant to Borough Ordinance No. 300, declared that Groff's building was in a 'dangerous condition' and ordered that it be removed. When Groff failed to comply with this resolution, the Borough instituted an action in equity in the Court of Common Pleas of Bucks County, seeking to have the building declared a public nuisance and to have the nuisance abated by ordering the building's removal.

Two hearings were held, and, at the close of the second hearing on June 30, 1971, the chancellor orally ordered ¹ the building to be razed and removed unless certain repairs and improvements were made to it within ninety days. On October 22, 1971, when the parties again appeared before the chancellor, it was conceded that the order of June 30, 1971 had not been carried out. Subsequently, by stipulation, both parties requested that the chancellor file an adjudication and decree nisi as required by Pa.P.C.P. No. 1517, and this was done by the chancellor on June 30, 1972. The decree nisi directed the demolition and removal of Groff's building within ten days of the date of entry of a final decree. Exceptions were filed, but the court en banc affirmed the decree nisi and entered a final decree to the same effect. Groff thereafter brought an appeal to this Court.

Our scope of review in equity matters is limited. The findings of fact of the chancellor will be reversed only where there has been manifest or clear error or a clear abuse of discretion. The chancellor's decision will stand if there exists sufficient evidence to justify the findings and logically sound, reasonable inferences and conclusions derived therefrom. Even a preponderance of testimony against the findings will be insufficient if there is testimony which, if believed, will warrant them. Ross v. Philadelphia Federation of Teachers, 8 Pa.Cmwlth. 204, 301 A.2d 405 (1973).

The essential questions before us, therefore, are 1) whether or not Groff's building constitutes a public nuisance and, if it does, 2) whether or not removal, as ordered by the lower court, is proper.

A 'nuisance' is "such a use of property or such a course of conduct as, irrespective of actual trespass against others or of malicious or actual criminal intent, transgresses the just restrictions upon use or conduct which the proximity of other persons or property in civilized communities imposes upon what would otherwise be rightful freedom. In legal phraseology, the term 'nuisance' is applied to that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property, real or personal, or from his own improper, indecent, or unlawful personal conduct, working on obstruction or injury to a right of another, or of the public, and producing such material annoyance, inconvenience, discomfort or hurt that the law will presume a consequent damage. . . ." Kramer v. Pittsburgh Coal Company, 341 Pa. 379, 380--381, 19 A.2d 362, 363 (1941). 'A public nuisance is an inconvenience or troublesome offense that annoys the whole community in general, and not merely some particular person, and produces no greater injury to one person than to another--acts that are against the well-being of the particular community--and is not dependent upon covenants. The difference between a public and a private nuisance does not depend upon the nature of the thing done but upon the question whether it affects the general public or merely some private individual or individuals. . . .' Phillips v. Donaldson, 269 Pa. 244, 246, 112 A. 236, 238 (1920).

Ordinarily, in actions to enjoin or abate public nuisances, equity has jurisdiction. Bedminister Township v. Vargo Dragway, Inc., 434 Pa. 100, 253 A.2d 659 (1969); Commonwealth v. Soboleski, 303 Pa. 53, 153 A. 898 (1931). An exception to this general rule, however, is a situation where a statutory remedy is available. Commonwealth v. Glen Alden Corporation, 418 Pa. 57, 210 A.2d 256 (1965). And here, the Borough has a statutory remedy available to abate public nuisances, ² which, rather than preempting equity's jurisdiction, specifically recognizes such jurisdiction.

'To prohibit and remove any nuisance, including but not limited to accumulations of garbage and rubbish and the storage of abandoned or junked automobiles and to prohibit and remove any dangerous structure on public or private grounds, or to require the removal of any such nuisance or dangerous structure by the owner or occupier of such grounds, in default of which the borough may cause the same to be done, and collect the cost thereof, together with a penalty of ten per cent of such cost, in the manner provided by law for the collection of municipal claims, or by action of assumpsit, Or may seek relief by bill in equity.' (Emphasis added.)

It has been said of this section: 'Thus, the act vests the borough with authority to remove or require the removal of a nuisance or dangerous structure. This is an awesome authority, since it empowers a governmental body to destroy or cause the destruction of private property without compensation. Hence, the exercise of such a power should be confined to cases of clear, present and continuing danger or nuisance. Even if there is a proper case to invoke the act, the power of the borough is limited to action which is reasonably deemed necessary to put an end to the or danger.' Hatboro Borough v. Ivycrest Guernsey Dairies, Inc., 79 Montg. 150, 153 (1961).

In its determination of whether or not Groff's building did in fact constitute a public nuisance, the lower court found:

'(T)he building, which is located [12 Pa.Cmwlth. 320] at 30 Noble Street, Sellersville, to be in a dilapidated, deteriorating and advanced state of disrepair; further, that it is an unoccupied two-story frame structure built in 1910 to be a cigar box factory and presently used for the storage of second hand furniture, refrigerators, freezers, tires, and other stock in trade of Mr. Groff's busienss; that its exterior dimensions are sixty feet by one hundred feet; that the exterior-interior walls consist of single...