Appeal, No. 216, Jan. T., 1956, from order of Court of Common Pleas No. 2 of Philadelphia County, Sept. T., 1955, No. 6466, in the case of Lened Homes, Inc. v. Department of Licenses and Inspections of the City of Philadelphia. Order affirmed. Proceeding upon petition of city and rule to show cause why summary judgment entered in mandamus directing issuance of zoning use and building permits should not be opened. Order entered denying petition, opinion by LEWIS, P.J. Defendant appealed.
James L. Stern, Deputy City Solicitor, with him Jacob J. Siegal and Richard H. Markowitz, Assistant City Solicitors, and David Berger and Abraham L. Freedman, City Solicitors, for appellant.
Edmund B. Spaeth, Jr., with him Homer H. Hewitt, III, Frederick L. Fuges, and MacCoy, Evans & Lewis, for appellee.
Before Stern, C.j., Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
This is an appeal by the defendant, the Department of Licenses and Inspections of the City of Philadelphia, from an order dismissing defendant's petition to open a summary judgment entered on November 11, 1955. The facts are unusual.
Plaintiff, a building corporation, purchased on April 1, 1954, a tract of land in the City of Philadelphia for the purpose of constructing row houses upon it. At that time the zoning ordinance of the City of Philadelphia permitted the construction of row houses. On June 24, 1954, the City amended the zoning ordinance to prohibit row houses in "A" Commercial Districts, which this was. On March 10, 1955, plaintiff filed an application for a permit for the erection of fifty-five single family attached dwellings along Lened Street. Plaintiff's application was refused and on appeal to the Zoning Board of Adjustment the refusal was sustained. Plaintiff then appealed to the Court of Common Pleas No. 2 of Philadelphia County. On September 25, 1955, the amendatory ordinance of June 24, 1954 was declared invalid. See Kelly v. Philadelphia, 382 Pa. 459, 115 A.2d 238. The record in this case was then remanded by the Court of Common Pleas to the Zoning Board of Adjustment for disposition in accordance with the existing valid zoning ordinance which permitted the construction of row houses.
Three days later plaintiff again requested the issuance of building permits in accordance with the order of the Court of Common Pleas. The Zoning board of Adjustment failed or refused to issue the building permits. The Zoning Board of Adjustment on October 7, 1955 filed exceptions to the order of the Court of Common Pleas, which were stricken off by that Court (on plaintiff's motion) on November 2, 1955. In the meantime, on October 6, 1955, an amendatory ordinance was again introduced in Council, which prohibited the erection of row houses in the district in question; this ordinance was enacted and approved by the Mayor on November 16, 1955. In the meantime, plaintiff filed with the court below its complaint in mandamus to compel the issuance of a building permit and the court below entered summary judgment in favor of plaintiff on November 11, 1955.
The question involved is whether under the unusual facts above set forth the lower court abused its discretion in refusing to open the judgment.
While a summary judgment can be entered only in a case that is clear and free from doubt: Downes v. Hodin, 377 Pa. 208, 214, 104 A.2d 495, the present proceeding is sufficiently like a proceeding to open a judgment by default and will be governed by the same principles.
A petition to open a judgment by default is addressed to the sound discretion of the court below and is essentially an equitable proceeding ruled by equitable principles, and petitioner must aver not only the existence of a valid defense, but equitable ...