Appeal, No. 112, Jan. T., 1952, from decree of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1951, No. 1485, in case of Roman Wyszynski and Genowefa Wyszynski v. City of Philadelphia, Department of Public Works, Bureau of Engineering, Sureys and Zoning. Decree affirmed; reargument refused June 24, 1952.
Harry R. Back, with him Garfield Levy and Back & Levy, for appellants.
James L. Stern, Assistant City Solicitor, with him Abraham L. Freedman, City Solicitor, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE ALLEN M. STEARNE
The single question is whether or not the remedy against the enforcement of penalties for an alleged zoning violation provided by the Zoning Act of May 6, 1929 P.L. 1551, 53 PS 3822 et seq. is exclusive. The court below ruled that it was. This appeal followed.
Appellants aver, in their bill in equity to enjoin the enforcement of an order of a Bureau of Engineering, Surveys and Zoning, that appellants acquired title to real estate in a zoned area on January 5, 1945; that in February, 1947, they filed with the Bureau an application for a permit authorizing the operation of a smoke house and refrigerator room; the permit was granted on February 26, 1947; money was spent in equipping the premises for such permitted use; on July 9, 1947, the premises were condemned because of alleged "illegal use"; on August 1, 1947, the permit issued on February 26, 1947, was revoked; and the city has issued a summons to collect penalties. The present bill in equity was filed October 4, 1951. According to the argument on appeal, it would appear
that the real question upon the merits is whether the permit granted related to a commercial project or was limited to a residential use. This in turn was interrelated to fraud, accident or mistake in the grant and revocation of the permit.
Where a permit was granted in February, 1947, but revoked in August, 1947, and apparently nothing done meantime until the filing of the present bill in equity on October 4, 1951, it is difficult to comprehend, even in equity, how appellants now could be afforded the relief which they seek. The Zoning Act, supra, affords complete statutory procedure and remedies. This Court has so decided, and that such procedure and remedy is exclusive: Taylor v. Moore, 303 Pa. 469, 154 A. 799; White v. Old York Road Country Club, 318 Pa. 346, 178 A. 3; Wojnar v. Yale and Towne Manufacturing Company, Inc., 348 Pa. 595, 36 A.2d 321; Castle Shannon Coal Corporation v. Upper St. Clair Township, 370 Pa. 211, 88 A.2d 56. See also Bartron v. Northampton County, 342 Pa. 163, 168, 19 A.2d 263; Keefer Estate, 351 Pa. 343, 344, 41 A.2d 666; Thompson v. Morrison, 352 Pa. 616, 624, 44 A.2d 55; Era Co., Ltd., v. Pittsburgh Consolidation Coal Co., 355 Pa. 219, 220, 49 A.2d 342; Schwab Adoption Case, 355 Pa. 534, 537, 50 A.2d 504. It is, therefore, unnecessary for us to decide whether the application for amendment to the bill in equity should have been allowed in order to aver that the revocation of the permit was merely "attempted."
Appellants' arguments that the Bureau of Engineering, Surveys and Zoning had no power to revoke their permit and that the attempt to do so interfered with appellants' vested rights, relate to the merits of their claim that the action of the Bureau was improper. These matters have no relevancy to ...