Appeal, No. 209, Jan. T., 1961, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1959, No. 4414, in case of Joseph S. Lovering, Jr. and Eleanor T. Lovering v. Zoning Board of Adjustment, City of Philadelphia, and Warren P. Griffiths. Grant of use certificate affirmed; grant of variance reversed; case remanded to zoning board of adjustment.
F. Hastings Griffin, Jr., with him Frederick D. Sarkes, and Barnes, Dechert, Price Myers & Rhoads, and Stassen, Kephart, Sarkis & Scullin, for appellants.
Lenard L. Wolffe, Assistant City Solicitor, with him Matthew W. Bullock, Jr., Assistant City Solicitor, James L. Stern, Deputy City Solicitor, and David Berger, City Solicitor, for zoning board of adjustment, appellee.
Jack C. Briscoe, with him Homer Cook Grasberger, for intervenor-appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and Plpern, JJ.
OPINION BY MR. CHIEF JUSTICE BELL
This is an appeal from an Order of Common Pleas Court No, 2 of Philadelphia County which affirmed, in part, the action of the Zoning Board of Adjustment which granted to the applicant a use certificate and several variances.
The applicant purchased this property in 1952. At that time the property was and still is zoned "A" residential. Applicant presently conducts a nursing and convalescent home on its property which is adjacent to this property and has conducted this home from 1945 until the present time. Applicant proposes to erect a new 3-story nursing and convalescent home, which will accommodate 212 patients, with accessory off-street parking. The proposed building would not meet the minimum set back and rear yard depth requirements. Applicant sought (a) permission to build and operate the home (b) with accessory private off-street parking and (c) a variance from the minimum set back and rear yard depth requirements.
Section 14-203 of the Zoning and Planning Section of the Philadelphia Code provides: "Section 14-203 - 'A' Residential District ... (2) The following nonresidential
uses shall be permitted only if a Board of Adjustment Certificate is obtained: ... (c) Medical and surgical hospitals, medical centers, and sanitaria other than for contagious disease; eleemosynary and public institutions (other than correctional) ... (e) Rest or convalescent homes." Section 14-1802(c) of the Code sets out the criteria to be employed by the Board in deciding whether a certificate shall be granted. The Board found that the proposed use conformed to those criteria. It granted a certificate permitting the use as a nursing home and also permitting the off-street parking lot. The Board also granted, without any testimony to justify it, a variance from the minimum open area requirements of the Code. The Court, without taking any testimony whatever, (a) affirmed the grant of the certificate permitting the use ane (b) by implication and without even mentioning the subject in its Order affirmed the variance, and (c) under its implied powers, remanded the case to the zoning board for the sole purpose of taking testimony upon the amended application for off-street parking. Protestants appealed from the Order of the lower Court.
Appellee moves to quash the appeal because the Order of the lower Court is interlocutory. While the question is a close one, we have decided not to quash. Those parts of the Order of which appellants complain are final: Myers v. Travelers Ins. Co., 353 Pa. 523, 46 A.2d 224. In Myers v. Travelers Ins. Co., the Court made absolute a rule by defendant to stay proceedings until plaintiff permitted a physical examination of himself to be made. Plaintiff appealed from this order; defendant filed a motion to quash the appeal on the ground that the order was interlocutory; the Court held ...