*1 601 power great I doubt that this Court has reduce the case at bar. the verdict In the at either case the court directed bar, below ac that a remittitur amount of be the verdict cepted by plaintiff granted. or a trial new accept Upon below refusal the court remittitur, appeal granted a trial on from that order, new and, grant majority of the Court order now vacates the ing a new trial and reduces the amount of the verdict My au reveals no $30,000 $13,000. research thority action such this Court the con and, opinion trary, I am of the constitu such action is tionally Publishing inhibited. See: Smith Times v. 296; Pa. Atl. Kennon v. Co., Gilmer, 9 Ct. 33 L. Ed. U.S. S. 110. Adjustment Bomgardner, v.

Appellant. Mtjsman- 1963. Before C. Argued May 28, Bell, J., O’Brien Coiien, Eagen, Jones, Roberts, JJ. no, *2 Robert for appellants. S. Maurer, him Spencer James S. Sail, City G-. Solicitor, Bowman, appellee. Assistant City Solicitor,

Opinion by Me. Justice November Robebts, 1963:

Appellants parcel seek a zoning variance land at Berryhill the northwest 17th corner of large Streets a Harrisburg. parcel This consists of dwelling vacant facing 17th five contiguous Street, each residence lots, sixteen feet and another wide, on fronting Berryhill Street. The is situated in an area designated ordinance zoning (ap- proved October restrictive 3, 1950) as the least R-5, residential classification. Permission was sought use the real estate for the erection operation of a gasoline service station, by authorized the ordinance classification for this zone.1

The board of adjustment refused to grant the vari- ance.2 On appeal to the Court of Common Pleas (section 12, permits gasoline 14) The ordinance subsection filling general and service in an stations area classified aas busi ness zone. 18(h) empowers Section of the ordinance grant variances instances where such “. . . will not be contrary where, owing special conditions, interest provisions of the a literal enforcement will ordinance result unnecessary hardships, spirit so that of the ordinance justice (This power and substantial done.” observed City Code, of the Third §4122 Board stems Class Act of June 28, 1951, 662, §41, L. added June P. P. L. P.S. §39122. af-

Dauphin County, board was the decision testimony. taking firmed additional without opin- following in the detailed circumstances supported by fully evi- ion of the court below are pertinent “There dence and are to this determination: type changes have been no and character lo- zoned are area which the cated ordinance re- since the enactment of the Diagonally ferred to the intersection above. across 17th Street and an area zoned Street, heavy industry, since enactment there was erected, large building brick used ordinance, Megs Corporation manufacturing for the of macaroni products. building upon was erected land formerly yard, which there was a lumber surrounded by high board fence. *3 presently premises,

“There is erected the large sought, story which the variance is brick three dwelling undeveloped adjoin house. Several lots the building. building poor very The inis re- state of pairs. premises part The were a of an de- estate of a February cedent who died 1957 and have not been occupied since that date. Continual and concerted ef- by forts have been made the heirs of the decedent to dispose property. of the Their respect, in efforts in however, been vain until on or about March agreement when an of sale was entered into with Company the California Oil for a total sum of $35,000. agreement contingent upon procurement was the of a variance.”

Appellants vigorously urge that the board’s action refusing in the arbitrary variance capricious was and an abuse its discretion and that it erred in con- cluding hardship presented that merely was an one. It is economic contended also that the board failed proper give consideration physical to the charac- of the teristics and the unnecessary, “unique peculiar” hardship imposed by classifi- or poor repair of the dwell- as well as the state cation, oyer ings year a five “the unsuccessful efforts for period acquire purchaser.” argued It is further prop- applied as classification, erty inappropriate question, because the charac- “is property in relation teristics, size, location, etc., properties surrounding radically different.” present things It is that because of “such asserted as neigh- traffic the mixed character of the conditions, properties physical in rela- condition borhood, parcel question properties, tion to other etc.,” surrounding unique “should be considered and the neighborhood adversely not affected if a vari- granted.” ance had been ap-

Our examination of the record satisfies us that light pellants’ prevailing deci- contentions, legal Recently, are force. sions without Court, Sheedy Zoning Adjustment, v. this Court, (1963), con- 409 Pa. 187 A. 2d 907 reaffirmed the trolling principles determining propriety of a variance. cor- or refusal here applied principles rectly these to the factual circum- agree it. We stances before the conclusions only reached court below: “The substantial hardship proved this case is unless the variance granted, be able to erecting there- purchase price gas |35,000. on a This *4 Supreme Pennsylvania Court of said circumstance, (1954), Pa. 181 376 Pincus v. does Power, hardship.”3 unnecessary an constitute have examined the record “. . . We and conclude findings to sustain the Board there is evidence 3 point Zoning recent case more Andress v. A (1963). 188 A. Adjustment, Pa. 2d 714 Adjustment proceedings are free that the any of discretion.” a violation law and abuse showing abuse of dis- In of a clear the absence part we of the board, cretion or an error of law on the that the must as did court conclude, below, adjustment properly refused the variance, decision must be sustained.

Order affirmed. Dissenting Opinion Mb. Justice Musmanno: Bomgardner Albert C. et in 1957, ah, inherited, contiguous properties three located at northwest Harrisburg. corner of 17th Streets properties consisting One of the is a vacant tract the other Bom- lots, two are residences. Ever since gardner posession properties et al. came into of these they unsuccessfully tried to sell them. In 1961 Company negotiated the California Oil with them buy properties provided they ob- $35,000, could permit tain a variance which would use gasoline land as a station. designated are located in what is Harrisburg ordinance of as Residen- R-5,

tial District, lowest residential classifi- gas and it excludes a cation, service or aas permissible 18(h) use. section However, ordi- nance authorizes the board to variances in cases where the adversely interest is not af- special “owing fected and where a literal conditions, provisions enforcement of the of the ordinance will re- unnecessary hardships, spirit sult so justice ordinance will observed and substantial done.”1 supported by This section is §4122 of City The Third Class (53 §39122). P.S.

Code *5 ar- traveled

South Seventeenth a heavily Street is south, north and tery Harrisburg, running directly running and approach serves as a key by-pass car- east and Street west through City. ries considerable moving approximately 9,000 traffic, vehicles a A real estate day. describing agent, “From Market commercial testified: neighborhood, Macaroni. Megs Street. There is a Lumber Company, 17th National Down Street Plate Pittsburgh Glass, Biscuit a new warehouse is Co., laundry, built.” posi-

The fact supports situation thus clearly longer tion of the appellants premises their are no suitable for sold purposes residential and cannot be or- purposes reasonably consistent with the separate parcels either as or as one unit. dinance, prospects homes constructing sale new nil. the five vacant lots are two practically on the dwellings already other two tracts were existing adapt over sixty-five years constructed and do not ago irresisti- present residential use. The conclusion is spe- ble that appellants hardship are faced with a cial peculiar to their property.

As a cannot be purse made a sow’s so ear, also a dust-laden restless noisy, does community quiet become haven residential, tree-shaded, through ordinance. A com- instrumentality petrified is not like a munity indifferent forest, It climate world events. time, raw material the invisible the hands of architect who shapes it ac- to the needs the environment cording best of all of the inhabitants interests the area. court said: “The The lower only substantial hard- in this case is that proved unless ship variance appellants will not be able to granted, for the purpose erecting there- purchase price of on a gas $35,000.” actual situation, If statement reflected a variance. be entitled to indeed not *6 hardship unique that the shows The record, however, in- resulting their not of the because to property of ability because the for but to sell $35,000, impossibility consistent for to it the any with an R-5 classification. with

Variances should of be bestowed course, not, instead a hand. where man’s land, lavish However, provides being him habitation, of so it used with sprouts only rocks or recreation and income, comfort, despair, re- local of a frustration and because debt, particular application in striction which, its community, are con- does not we benefit instance, property question fronted with as to whether deprived reason- not owner process fair able use his without due prop- history, The location and condition of the law. erty pe- hardship special in this case makes out a and adjudicated meeting culiar to the criteria it, field. cases

Zoning help com- intended restrictions are munity not harm ac- and it. It is this reason that, knowledging given merit of a restriction, overall there are which lawmakers still realize that situations loosening jacket authorize a where, strait “public by doing interest” harmed will not be so, justice” and “substantial will done. testimony granting reveals of the vari- applied only contrary here

ance not be it will bene- best interests but enhance and 64-year dilapidated fit interests. The two those old present neglected the five houses and uninhabited lots picture depression abandon and waste, can which quickly brightness be transformed into one of progress. experts Real estate wholesome testified that the removal houses ramshackle and the erection gasoline would stabilize values nearby ease tbe properties, heavy traffic load at Berryhill-Seventeenth Street increase intersection, at this visibility thus traf- point, potentially reducing fic mishaps. service station would be constructed in accordance rigid specifications standards for the calling precautions utmost safety installa- tion and operation.

I would hold that the board abused discretion its refusing the variance and that the court be- low erred not so holding. this Court

Since, my view, confirms two those I dissent. errors, *7 Appellant,

Geiman, v. Board of Assessment

and Revision of Taxes.