3 Pa. Commw. 511 | Pa. Commw. Ct. | 1971
Opinion,
This appeal is from an order and final decree of the Court of Common Pleas of Berks County dismissing exceptions to an adjudication by the Chancellor, Eshelman, J., restraining and enjoining the defendants, or anyone acting in their behalf, from maintaining and operating at premises 161 Clymer Street, Reading, Pennsylvania, an insurance office and office for the preparation of income tax returns or any allied
After reviewing the record and researching the matter, we adopt the well-reasoned adjudication of Judge W. Richard Eshelman,
The City of Reading, plaintiff, filed a complaint requesting that Harry W. Reich and Anna E. Reich, his wife, defendants, be restrained from using their premises, 161 Clymer Street, Reading, Pennsylvania, for conducting an insurance business in violation of the City of Reading Zoning Ordinance. An answer was filed and a hearing was held.
The issues are (1) whether defendants were obliged to obtain a permit to change the use of a portion of the premises from residential to that of an insurance office, and (2) whether such insurance office comes within the definition of “Professional Offices” as one of the permitted principal uses in a Residential Multiple-Family Zoning District.
The facts are that defendants are owners of premises 161 Clymer Street, Reading, Berks County, Pennsylvania, having acquired the premises by deed dated
It is apparent that when the Zoning Administrator and the Zoning Board of Adjustment refused to issue a permit to defendants to partition off a portion of the two-story garage building for use as an insurance office, defendants, without obtaining a permit, located the insurance office in the basement of the three-story brick building theretofore used for residential purposes, and which insurance office has been used as such since about February 1, 1970, and defendants have resided since February 11, 1970 on the first floor of said three-story building in one of the nine apartments located therein. This involved a change in use by defendants of a portion of the basement area from that of residential to that of an insurance office. Does the ordinance require that a permit be obtained for such change of use? The first sentence of Section 1805.1 of the ordinance provides as follows: “1805.1 — When Permit is Required. — It shall be unlawful to excavate for or store material, machinery or equipment on a lot in connection with the erection, construction, placement, reconstruction, alteration, repair, extension, replacement, restoration or conversion of any structure, building, and/or sign (except a sign under twenty (20) square feet) or change the use, area.of use, or percentage of use or extend or displace the use of any structure, building, sign, and/or land or portion thereof in the city, without first filing an application with the
Defendants also contend that their insurance office comes within the definition of “Professional Offices” as a permitted principal use under Section 701.1 in a Residential Multiple-Family Zoning District for which no permit is required.
It is a principle of statutory construction that in construing a legislative enactment the court must ascertain and give effect to the legislative intention as expressed in the language employed: Bonasi v. Haverford Township Board of Adjustment, 382 Pa. 307 [115 A. 2d 225 (1955)]. A municipality may designate by definition any meaning it wishes to be accorded particular words or phrases in a given ordinance, even though the meaning differs from that ordinarily conveyed by the term or phrase: Sterling v. Philadelphia, 378 Pa. 538 [106 A. 2d 793 (1954)]. However, in the absence of a specific definition given in an ordinance, words and phrases must be construed according to their common and approved usage: Act of May 28,1937, P. L.
Unfortunately the ordinance in question does not define “Professional Offices” so that the legislative intent must be gathered from the ordinance as a Whole, assigning the usual and generally accepted meaning to the words or phrases employed.
A careful examination of the statute discloses that “Professional Offices” is set forth as one of the permitted principal uses in all four districts classified as residential, i.e., limited one family, one family, two family, and multiple-family. In addition to governmental and public utility installations for servicing the area, all of the other permitted principal uses in these districts are private residential uses of varying types of density or are primarily public, quasi-public or private institutional or recreational uses, but no business or service establishments of any kind are set forth as permitted principal uses except that a funeral home is specifically permitted in a multiple-family district. By contrast, various additional principal uses are permitted in a Business Neighborhood Zoning District, including “business or professional office”, retail business, service establishments, eating places, and automotive parking and service facilities. It is therefore apparent that except for professional offices and a funeral home, and governmental and public utility installations, the legislative intent is to permit only residential, institutonal and recreational uses in a multiple-family district.
Defendant Harry W. Reich contends that because of the nature of the business conducted on the premises and particularly because he is licensed by the Commonwealth of Pennsylvania as an insurance agent and insurance broker, his occupation is that of a profession and his insurance office is a professional office within the terms of the ordinance. The applicable licensing Act of May 17, 1921, P. L. 789, §601, as amended, 40 P.S. 231, defines “agent” as “. . . an individual, copart
The mere requirement of licensing does not of itself catagorize the occupation as that of a profession. There are various occupations required to be licensed by the Commonwealth but which have been held not to be professions, such as real estate brokers: Ridley Township v. Pronesti, 431 Pa. 34 [244 A. 2d 719 (1968)]; Cummer v. Narberth Borough Board of Adjustment, 59 D. & C. 686 [(1947)]; and beauticians: Bonasi v. Haverford Township Board of Adjustment, supra; City of Reading v. Nigrelli, 51 Berks Co. L. J. 89 [(1958)]. The occupation of funeral director has been held to be both a business and a profession, the various decisions being discussed at length in Leaver v. Buckingham Township Board of Adjustment, 10 D. & C. 2d 333 [(1956)].
Admittedly, an exact definition of “profession” or “professional” is very difficult. The concept is not necessarily limited to what were once considered the
This appeal is dismissed and the decree of the lower court is affirmed.
See also Recht v. Graves, 257 App. Div. 889, 12 N.Y.S. 2d 158 (1939), in which it was held that life insurance agents were engaged in business and not in the practice of a profession; Otis v. Graves, 259 App. Div. 957, 20 N.Y.S. 2d 426 (1940), in which petitioners, engaged in the activity of insurance brokerage, were held not exempt from the unincorporated business tax because they did not practice a profession within the meaning of the Tax Daw; In Re Grant, N.Y.L.J., October 21, 1954, p. 13, where in effect, the court held that the business of an insurance broker did not come within “professional use”; McVey v. Reichley, 152 N.E. 2d 321 (Oh. App. 1957), where the use of a structure in the rear of a residence in a residential zone as an insurance agency office was held not a use for a purpose “customarily incidental” to the principal building or a customarily incidental “home occupation within a dwelling” within the zoning regulations; Wright, What is a “Profession? 29 Canadian B. Rev. 748 (1951) ; Klass, What is a Profession?, 4 Canadian B.J. 466 (1961).