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PUMO v. NORRISTOWN BOROUGH. (07/17/61)

July 17, 1961

PUMO, APPELLANT,
v.
NORRISTOWN BOROUGH.



Appeal, No. 65, Jan. T., 1961, from order of Court of Common Pleas of Montgomery County, June T., 1958, No. 4, in case of Gasper H. Pumo et ux. v. Borough of Norristown et al. Order affirmed.

COUNSEL

Milton Jacobson, for appellants.

Nicholas H. Larzelere, for intervenor, appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Musmanno

[ 404 Pa. Page 476]

OPINION BY MR. JUSTICE MUSMANNO.

On May 6, 1958, the Norristown Borough Council enacted Ordinance No. 1368 (later approved by the burgess) which altered the zoning of the land therein described so as to convert it into a secondary business district.

Gasper H. Pumo and his wife, Henrietta T. Pumo, who live within 300 feet of the area affected by the ordinance, protested the ordinance and the matter eventually came on for hearing before the Court of Common Pleas of Montgomery County. The protestants attacked the ordinance on three grounds, which will be taken up in seriatium.

(1) It was asserted that the amendment was illegal because (contrary to the provisions of the zoning ordinance) certain property owners, living in the vicinity of the tract to be affected by the amendment, did not receive personal notice of the application and the subsequent hearing. The court of common pleas found that although no personal service was made on the affected property owners, they in fact did have notice of the proceedings. We agree with the court's findings and conclusions in this respect. The Act of May 4, 1927, P.L. 519, § 3302, amended July 10, 1947, P.L. 1621, § 93 (53 PS § 48302), provides: "The council shall provide

[ 404 Pa. Page 477]

    by ordinance the manner in which the boundaries of such districts shall be determined and established and from time to time amended... However no such boundary shall become effective until after public hearing in relation thereto at which parties in interest and citizens shall have an opportunity to be heard. At least fifteen days' notice of the time and place of such hearing shall be published in a newspaper of general circulation in such borough." ( Emphasis supplied)

The record shows that notice of the hearing on the proposed amendment, scheduled for April 23, 1958, appeared in the Norristown Times Herald on April 5, 1958, and that proof of this publication was filed with the zoning commission. The fact that the more stringent requirements of notice indicated in the Norristown Borough Zoning Ordinance were not followed, did not invalidate the proceedings. The Superior Court held in Putney v. Abington Township, 176 Pa. Superior Ct. 463, 476, that the "provisions of the zoning ordinance with respect to notice were directory only." Further that, "when the township caused notice to be published at the time and in the manner prescribed in [the enabling act], it had done all that was required to validate the ordinance."

(2) The protestants then argued that the transcript of testimony taken before the borough's zoning commission on April 23, 1958, did not show that several of the witnesses had been sworn. It so happens, however, that each of the witnesses who allegedly was not sworn (or the record does not show he or she was sworn) testified in opposition to the amendment. Thus, the protestants could not possibly have been adversely affected by what was said. Nor can it be maintained that the amendment was predicated on this allegedly unsworn testimony because, ...


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