Appeal, No. 175, Jan. T., 1951, from order of Court of Common Pleas No. 5 of Philadelphia County, June T., 1949, No. 4194, in Matter of Premises 1632 South Broad Street, Philadelphia. Order set aside, decree vacated and bill dismissed.
A. Evans Kephart, with him Robert E. Scullin and John W. Kephart, Jr., for appellant.
No argument was made nor brief submitted for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE CHIDSEY
This is an appeal by Anthony Oteri from the disposition by the court below of a bill in equity brought against him by Maria Bartone.
On May 10, 1947 appellant, the owner of premises located at 1632 South Broad Street, Philadelphia, the premises adjoining which are owned and occupied by Mrs. Bartone, applied to the Bureau of Building Inspection and to the Bureau of Engineering, Surveys and Zoning for permits authorizing the alteration of the first floor of his premises and the construction of a one-story rear addition thereto for use as a bakery. The application was refused as being in violation of the city's zoning ordinance of August 10, 1933. Oteri appealed to the Zoning Board of Adjustment for a certificate of variance which was granted on December 8, 1947. He thereupon proceeded with the alterations and completed them on or about September 1, 1948. The brick extension permitted by the variance was 12
feet 4 inches in depth and 14 feet 6 inches in width. However, the actual construction extended from 2 1/2 to 3 feet beyond the allowed depth limit, and a small brick lavatory structure, 4 feet by 5 feet, extended beyond this. Oteri claimed that the extension of the first floor beyond the allowed limit was an honest error on the part of the bricklayer. However this may be, upon appeal to the Zoning Board of Adjustment from a refusal of the Bureau of Engineering, Surveys and Zoning to approve the expanded construction, the Board first refused, but then upon reconsideration, on May 21, 1949 authorized the issuance of permits. The Board found that "an unnecessary hardship would be imposed upon the Owner if the strict requirements of the Ordinance as to rear yard and open area are enforced.", and "In the light of the necessity of the bakery's having, for health purposes, the additional space to serve the public, the Board finds that it is for the purpose of promoting the health of the customers of the bakery, which already legally existed on the premises, that this small additional space be made available for promoting such purpose.".
On July 29, 1949, more than two months thereafter, Mrs. Bartone filed her bill in equity praying that the Board's order be declared void and the defendant (here appellant) be directed to remove such portion of the extension or addition to his premises as did not conform with the original variance granted him. On September 8, 1949 a decree pro confesso was entered for want of an appearance and want of an answer. On October 14, 1949 Oteri obtained a rule upon Mrs. Bartone to show cause why the decree pro confesso should not be stricken off, with leave to Oteri to file preliminary objections and in the alternative to file an affidavit of defense. Pending disposition of this rule, the City of Philadelphia filed its "Petition to Intervene
and Be Let Into a Defense", and Oteri filed a proposed answer.*fn1 Thereupon a stipulation was entered into by Mrs. Bartone, Oteri and the City of Philadelphia under the terms of which the lower court was requested to issue certiorari to the Zoning Board, directing the latter to certify the entire record to the court. The stipulation also provided that the entire record in the equity proceeding, including Oteri's proposed answer to the bill, be considered by the court in its determination of the "appeal"; that the bill in equity be considered in lieu of a petition for writ of certiorari and the proposed answer in lieu of a petition for leave to intervene; and that the ...