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SMITH v. ZONING BOARD ADJUSTMENT. (03/20/62)

March 20, 1962

SMITH, APPELLANT
v.
ZONING BOARD OF ADJUSTMENT.



Appeal, No. 386, Jan. T., 1961, from order of Court of Common Pleas No. 4 of Philadelphia County, March T., 1961, No. 2300, in case of Harry and Miriam E. Smith et al. v. Zoning Board of Adjustment. Appeal dismissed.

COUNSEL

Edward Unterberger, with him Samuel Packman and Stanton W. Kratzok, for appellants.

James L. Stern, Deputy City Solicitor, with him Carl Zucker and Matthew W. Bullock, Jr., Assistant City Solicitors. and David Berger, City Solicitor, for Zoning Board of Adjustment, appellee.

Louis E. Levinthal, with him Harold E. Kohn, William T. Coleman, Jr., Bruce W. Kauffman, Harry A. Rutenberg, and Dilworth, Paxson, Kalish, Kohn & Dilks, for intervenors.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen and O'brien, JJ.

Author: Cohen

[ 407 Pa. Page 123]

OPINION BY MR. JUSTICE COHEN

This is an appeal from the refusal of the lower court to grant a temporary restraining order prohibiting further construction by the defendant-intervenors on certain property located in Philadelphia. Appellants sought the restraining order in connection with their petition for a writ of certiorari to the court of common pleas from a decision of the appellee, the Zoning Board of Adjustment of the City of Philadelphia (Board), affirming the issuance of the permit allowing the construction.

Several years after the property was rezoned "A" commercial from "A" residential, intervenors applied to the zoning administrator for a zoning and use permit for an apartment building which would also contain store and office space. The permit was granted as a matter of right on the basis of the zoning classification of the area. Appellants, residents of the neighborhood, appealed to Board from the issuance of the permit, contending that the city ordinance rezoning the premises constituted "spot zoning," and, hence, was

[ 407 Pa. Page 124]

    violative of the law. Following Board's affirmance of the action of the zoning administrator, appellants filed a petition for a writ of certiorari to the court of common pleas. This proceeding is still pending, and, as yet, has not been heard.

Resorting to section 14-1803(3) of the Philadelphia Zoning Ordinance which provides: "... the allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board, and on due cause shown, grant a restraining order", appellants filed a petition for a temporary restraining order which was denied. This appeal followed.

The scope of our review on appeal from the refusal to grant a preliminary injunction - which in this case assumes the form of a restraining order and a supersedeas under section 14-1803(3) of the Philadelphia Zoning Ordinance - is narrowly restricted. Rubin v. Bailey, 398 Pa. 271, 274, 157 A.2d 882 (1960). We will look only to see if there were any apparently reasonable grounds for the action of the court below, based upon the facts presented, and we will not further consider the merits of the case or pass upon the reasons for or against such action, unless it is ...


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