Kelly v. City of Philadelphia

• Court: Pennsylvania Supreme Court
• Writing for the Court: CHIDSEY, Justice.
• Citation: Kelly v. City of Philadelphia, 382 Pa. 459, 115 A.2d 238 (Pa. 1955)
• Decision Date: 27 June 1955
• Parties: John B. KELLY, Taxpayer, v. CITY OF PHILADELPHIA, Joseph S. Clark, Jr., Mayor; Vernon D. Northrop, Director of Finance; Foster A. Dunlap, City Controller; and George DiLauro, City Treasurer, Appellants. QUEEN LANE PARK, Inc., v. CITY OF PHILADELPHIA, Joseph S. Clark, Jr., Mayor; Robert K. Sawyer, managing Director; Henry D. Harral, Street Commissioner; Walter S. Pytko, Commissioner of Licenses and Inspections; Vernon D. Northrop, Director of Finance; Foster A. Dunlap, City Controller; and George Dilauro, City Treasurer, Appellants. QUEEN LANE PARK, Inc., Appellant, v. City of PHILADELPHIA, Jos. S. Clark, Jr., Mayor; Robt. K. Sawyer, Managing Director; Paul MacMurray, Street Commissioner; Walter S. Pytko, Com'r of Licenses and Inspections; Lennox L. Moak, Director of Finance; Stephen E. Mc-loughlin, Jr., City Controller, and Francis D. Pastorius, 5th City Treasurer, Appellees.

115 A.2d 238

382 Pa. 459

John B. KELLY, Taxpayer, v. CITY OF PHILADELPHIA, Joseph S. Clark, Jr., Mayor; Vernon D. Northrop, Director of Finance; Foster A. Dunlap, City Controller; and George DiLauro, City Treasurer, Appellants.

QUEEN LANE PARK, Inc., v. CITY OF PHILADELPHIA, Joseph S. Clark, Jr., Mayor; Robert K. Sawyer, managing Director; Henry D. Harral, Street Commissioner; Walter S. Pytko, Commissioner of Licenses and Inspections; Vernon D. Northrop, Director of Finance; Foster A. Dunlap, City Controller; and George Dilauro, City Treasurer, Appellants.

QUEEN LANE PARK, Inc., Appellant, v. City of PHILADELPHIA, Jos. S. Clark, Jr., Mayor; Robt. K. Sawyer, Managing Director; Paul MacMurray, Street Commissioner; Walter S. Pytko, Com'r of Licenses and Inspections; Lennox L. Moak, Director of Finance; Stephen E. Mc-loughlin, Jr., City Controller, and Francis D. Pastorius, 5th City Treasurer, Appellees.

Supreme Court of Pennsylvania.

June 27, 1955

Action to enjoin enforcement of zoning ordinance amendment and to enjoin erection of incinerator. The Court of Common Pleas No 2, Philadelphia County, Nos. 5153 and 5383, March Term, 1953 (Transferred from Court of Common Pleas No. 5), Vincent A Carroll, J., entered decree for plaintiff, and defendants appealed. The Supreme Court, at Nos. 128, 129 and 169 Chidsey, J., held that failure to comply with Home Rule Act provisions requiring that fifteen days notice be given before hearing on amendment of zoning ordinance rendered ordinance void, even in absence of a showing of prejudice.

Decree modified and affirmed.

Herbert M. Linsenberg, Asst. City Sol., James L. Stern, Deputy City Sol., Jerome J. Shestack, First Deputy City Sol., Abraham L. Freedman, City Sol., Philadelphia, for City of Philadelphia and others.

John Edward Sheridan, Philadelphia, for John B. Kelly.

Henry J. Morgan, James P. Gilliland, Jos. P. Flanagan, Jr., Walter B. Saul, Philadelphia, for Queen Lane Park, Inc.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

CHIDSEY Justice.

These appeals present two principal questions (1) whether the evidence supports the chancellor's conclusion that the operation of a proposed municipal incinerator of 600-ton capacity on an area of land in the City of Philadelphia would create a nuisance in fact; (2) whether a certain ordinance of the City changing the classification of the area in question to allow the construction of the incinerator thereon was validly enacted. The litigation arose out of complaints in equity filed by John B. Kelly, a taxpayer, and Queen Lane Park, Inc., the owner of an undeveloped tract of land immediately adjacent to the proposed site of the incinerator, seeking to restrain the City of Philadelphia and its officials from enforcing in any manner the ordinance approved March 13, 1953 changing the classification of a City-owned tract of land in the vicinity of Fox Street and Abbottsford Avenue from Class ‘ B’ and Class ‘ C’ Residential to Class ‘ Least Restricted’ and from proceeding with the erection of the incinerator on the property so rezoned.

In an attempt to cope with a serious refuse disposal problem, the City administration had for some time under consideration a plan to build new municipal incinerators and to increase the capacity of existing ones, the aim being to provide for complete disposal of refuse by incineration in four sanitation districts, each district encompassing approximately one-fourth of the present and anticipated future population of the City. The proposed incinerator involved in this case was to serve the Northwest District of the City, having a population of approximately 550,000 residents.

To effectuate this purpose, on or about June 26, 1952 Bill No. 315 was introduced in Council entitled ‘ An Ordinance to Amend an Ordinance Known as ‘ Philadelphia Zoning Ordinance and Zoning Maps' Approved August 10, 1933, by Changing Designation for the Following Portion of the City of Philadelphia from Partly Class B Residential and Partly Class C Residential to Class Least Restricted: Northeast Side of Fox Street 280 feet 8 5/8 inches Northwest of Abbottsford Avenue’ . In July of 1952 protests were filed with the President of City Council by more than 20% of the owners of land immediately adjacent to the area sought to be rezoned opposing the change of zoning. Notice of a public council manic hearing on the bill, to be held on September 16, 1952, was published in three newspapers of general circulation in the City of Philadelphia eight days prior to the hearing. At the hearing the plaintiffs and numerous other persons appeared to protest the proposed zoning change. Thereafter, on February 26, 1953, a committee of Council reported out an amended bill which subdivided the City's lot and rezoned it so that two strips of land, each approximately 100 feet in width, immediately adjacent to the tracts owned by the protestants, were eliminated from the north and south ends thereof. Under this amendment these strips retained their classification of ‘ B’ and ‘ C’ Residential.^[1] As amended, the bill was passed on March 12, 1950 by a vote of 11 to 5, which was less than three-fourths of the membership of Council, without readvertisement or further public hearing, and on the following day, March 13, 1953, it was approved by the Mayor.

After many hearings producing a printed record of more than 1,000 pages, the chancellor upheld the validity of the ordinance but concluded that the operation of the incinerator, if erected, would constitute a nuisance in fact, and thereupon entered the following decree nisi: ‘ * * * That the City of Philadelphia is hereby restrained from operating a six hundred ton incinerator at Fox Street and Abbottsford Avenue; this decree to remain in effect ‘ until such time as the Court shall determine that such a substantial and material change in the character of the neighborhood has occurred so that the operation of an incinerator of such size will not constitute a nuisance in fact’ * * *'. Exceptions thereto filed by both parties were dismissed and the decree nisi was adopted and entered as a final decree.

A careful reading of the lengthy record compels us to disagree with the conclusion on which the decree is based. At the outset it is to be observed that the chancellor correctly found that the incinerator would not be a nuisance per se, and plaintiffs do not contend otherwise. The conclusion of the court below rests solely upon the chancellor's findings that the operation of the incinerator after its erection will constitute a nuisance in fact.

Our decisions are in accord with those of the majority of jurisdictions that before an injunction will be granted to restrain a threatened nuisance it must clearly appear that a nuisance will necessarily result from a contemplated act which it is sought to enjoin. In Pennsylvania Co., etc., v. Sun Co., 290 Pa. 404, at page 413, 138 A. 909, at page 912, 55 A.L.R. 873, we said: ‘ * * * Where it is sought to enjoin an anticipated nuisance, it must be shown (a) that the proposed construction or the use to made of property will be a nuisance per se; (b) or that, while it may not amount to a nuisance per se, under the circumstances of the case a nuisance must necessarily result from the contemplated act or thing. See 7 A.L.R. 749; 26 A.L.R. 937. The injury must be actually threatened, not merely anticipated; it must be practically certain, not merely probable. * * *’ (Emphasis supplied.) In White v. Old York Road Country Club, 322 Pa. 147, at page 152, 185 A. 316, at page 319, Mr. Chief Justice Kephart, speaking for a unanimous Court, said: ‘ In these cases [of anticipated nuisance] equity cannot act with too much caution. Its strong arm must not be allowed to fall with destructive effect upon a lawful and necessary business, unless it is plainly manifest and certain beyond doubt that the pursuit of the trade would result in substantial injury. * * *’ In Rhodes v. Dunbar, 57 Pa. 274, cited with approval in the Pennsylvania Co. case, supra, it was stated: ‘ * * * ‘ As a general rule the court ought not to interfere in cases of nuisances, where the injury apprehended is of a character to justify conflicting opinions, whether the danger will in fact be ever realized.’ ' The evidence in the present case was conflicting throughout. The testimony of the lay and expert witnesses on behalf of the plaintiffs was to the effect that the operation of the incinerator would create conditions constituting an enjoyable nuisance. On the other hand, the lay and expert testimony adduced by the City, of at least equal quality and persuasiveness, was directly to the contrary. Under this state of the evidence, it could not be held that a nuisance would necessarily result from the operation of the incinerator.

The chancellor, confronted by the diverse views of the witnesses principally the diametrically opposed opinions of the experts called, without questioning the honesty of their views or beliefs, apparently disregarded the testimony adduced by the City and adopted that offered by the plaintiffs. While it is true that findings of fact made by a chancellor, confirmed by the court en banc, will not ordinarily by reversed on appeal when supported by adequate evidence, conclusions whether of law or ultimate fact are no more than his reasoning from the underlying facts and are reviewable: Law v. Mackie, 373 Pa. 212, 223, 95 A.2d 656; Peters v. Machikas, 378 Pa. 52, 56, 105 A.2d 708, and cases cited therein. This is all the more true where the underlying facts themselves are not in esse but matter of inference and deduction. In the instant case the basic facts upon which the ultimate finding or conclusion that a nuisance would be created by the operation of the...