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GARCHINSKY v. CLIFTON HEIGHTS BOROUGH ET AL. (03/20/70)

decided: March 20, 1970.

GARCHINSKY
v.
CLIFTON HEIGHTS BOROUGH ET AL., APPELLANTS



Appeal from order of Court of Common Pleas of Delaware County, No. 3485 of 1969, in case of John S. Garchinsky et ux. v. Borough of Clifton Heights et al.

COUNSEL

Albert J. Crawford, Jr., with him Crawford, Graham & Higgins, for appellants.

Robert James Jackson, with him Kassab, Cherry, Curran & Archbold, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen.

Author: Cohen

[ 437 Pa. Page 313]

This is an appeal from an order in mandamus of the Court of Common Pleas of Delaware County directing the Building Inspector of the Borough of Clifton Heights to issue to John and Adele Garchinsky, appellees, a building permit for alteration and use of premises situate at 51 Edgmont Avenue in the Borough of Clifton Heights.

[ 437 Pa. Page 314]

Appellees, then equitable owners of the property at 51 Edgmont Avenue, made application to the Borough Building Inspector for a building permit to make certain modifications to the premises and building they were about to acquire. The Building Inspector refused to grant the permit applied for, and appellees appealed to the Zoning Board of Adjustment of the Borough of Clifton Heights (Board). The proposed modifications to the premises and the use thereof are permitted when authorized as a special exception under the Borough's Zoning Ordinance.

On December 17, 1968 a public hearing on appellees' appeal was held by the Board at which appellees and opponents of the application appeared and testified. At the conclusion of the hearing it was agreed that the time period within which the Board would have to act on the appeal would commence when the notes of testimony were transmitted to the Board. This occurred on January 7, 1969. During the latter part of January, 1969 appellees received in the mail a document executed by the Chairman of the Board which was dated January 18, 1969 and on which was written in longhand "Appeal having been made to the Board of Adjustment by the aforesaid for Variance from the terms of The Borough of Clifton Heights Zoning Board, and the Board having held public hearing after due notice as required by law, is of the opinion that this variance be refused."

On March 5, 1969 appellees acquired legal title to the premises, and on March 15, John Garchinsky again unsuccessfully applied to the Building Inspector for a building permit.

The present action was commenced on March 18 with the filing of a complaint in mandamus. On April 25 a Rule was granted by the court below ordering the Borough of Clifton Heights and Joseph Gilligan, Borough Building Inspector, appellants, to show cause why

[ 437 Pa. Page 315]

    motion for summary judgment should not be granted on the complaint. After argument the court, on August 14, 1969, granted appellees' motion for summary judgment and ordered the ...


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