387 F2d 126 Yecko v. Township of Penn

387 F.2d 126

Albert YECKO and Phillip Yecko, partners trading and doing
business as Yecko Bros., Appellants,
The TOWNSHIP OF PENN, a Political Subdivision of the
Commonwealth of Pennsylvania, and William Mowry,
Russell Smail, and Charles Marshall,
Township Supervisors.

No. 16553.

United States Court of Appeals Third Circuit.

Argued Nov. 8, 1967.
Decided Dec. 15, 1967.

David M. Harrison, Harrison & Louik, Pittsburgh, Pa. (John M. Means, Pittsburgh, Pa., Saul J. Bernstein, Butler, Pa., on the brief), for appellants.

Carmen V. Marinaro, Butler, Pa., for appellees.


Before STALEY, Chief Judge, and KALODNER and FORMAN, Circuit Judges.


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This is an appeal from an Order of the District Court for the Western District of Pennsylvania denying the plaintiffs' petition to restrain enforcement of a zoning ordinance of the Township of Penn in Butler County, Pennsylvania, and to enjoin the Township from taking any action to deprive the plaintiffs of the use of their land as an automobile wrecking and parts yard.


Plaintiffs here contend, as they did below, that (1) the zoning ordinance is unconstitutional; (2) they had established an 'existing use' of the land occupied by them prior to the enactment of the ordinance; and (3) the 'existing use' was a 'vested interest' entitled to protection under the Constitution of the United States.


The District Court's Order was issued after extensive hearing. The evidence adduced supports the District Court's fact-finding that the asserted 'existing use' of the land did not create a 'vested interest' therein.


We further are of the opinion that the District Court did not err in its conclusion of law that the mooted zoning ordinance is constitutional.


The Order of the District Court will be affirmed for the reasons so well-stated in Chief Judge Gourley's opinion.