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ANNA CHRISTIANSEN v. ZONING BOARD ADJUSTMENT (PHILADELPHIA) (12/29/70)

decided: December 29, 1970.

ANNA CHRISTIANSEN
v.
ZONING BOARD OF ADJUSTMENT (PHILADELPHIA), APPEAL OF JEROME GROSS



Appeal from the decision of the Court of Common Pleas of Philadelphia County, at No. 701, April Term, 1968, in case of Anna Christiansen v. Zoning Board of adjustment, Appeal of Jerome Gross. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Richard I. Torpey, with him Yale B. Bernstein, Brickley, Torpey and Bernstein, for appellant.

Carl K. Zucker, Deputy City Solicitor, with him Levy Anderson, City Solicitor, for appellee, City of Philadelphia.

John E. Power, Jr., for appellee, Christiansen.

President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri. Opinion by Judge Crumlish, Jr. Concurring Opinion by Judge Barbieri. Dissenting Opinion by President Judge James S. Bowman. Judge Roy Wilkinson, Jr., and Judge Glenn E. Mencer join in this dissenting opinion.

Author: Crumlish

[ 1 Pa. Commw. Page 35]

This appeal is from an order of the court below quashing an appeal of a decision by the Philadelphia Zoning Board of Adjustment on the grounds that it had not been filed within the ordinance prescribed period of thirty days.

On July 9, 1969, the Zoning Board of Adjustment refused an application by Jerome Gross, for a variance on the premises 2338 East York Street, Philadelphia. On July 30, 1969, his counsel filed a writ of certiorari directed to the Board in the Office of the Prothonotary of the Court of Common Pleas of Philadelphia County. The writ was duly stamped and perfunctorily issued to the Board. However, the petition which, by the terms of the ordinance, should have accompanied the writ, was not filed at that time.

On August 6, 1969, the Zoning Board, by a person who is yet unidentified, reminded counsel for Gross that the petition was missing. Counsel indicated to the caller that he was in his office momentarily and was then about to leave on his vacation. With the assurance that the petition would be accepted when he returned, he resumed his holiday. On August 9, 1969, the prescribed appeal period expired.

When he returned on August 28, 1969, counsel filed the required petition. A Motion to Quash followed. Argument was heard in the Court of Common Pleas by Judge Sloane, who granted the Motion to Quash.

Section 14-1806(1) of the Philadelphia Zoning Code provides that any party aggrieved by the decision of the Board may file a petition with the Common Pleas Court specifying the grounds for the appeal. "Such Petition shall be presented to the Court within thirty days after the filing of the decision in the office of the Board." Subsection (2) of 14-1806 provides that the court, "upon presentation of such Petition, . . . may

[ 1 Pa. Commw. Page 36]

    allow a Writ of Certiorari, directed to the Board, to review such decision of the Board . . .".

The failure to literally comply with the requirement that a petition be filed by a date certain, or the issuance of the writ by the Prothonotary without the petition is not in dispute. It is for us to consider the effect of these defects. Appellant, Gross, contends that either (1) the timely issuance of the writ in itself was sufficient to perfect the appeal, or (2) the untimely filing should be ignored in view of the assurances received from a representative of the Zoning Board.

Appellee relies on the doctrine that statutory procedural provisions for judicial review should be strictly construed and in this instance the petition having been filed after the thirty day statutory period, the writ was a technical nullity and the right of appeal lapsed. Further, appellee contends that the reliance by applicant's counsel upon the telephoned assurances has no basis in law for ignoring his failure to file his appeal on time. We do not suggest that in the legal spectrum, the parties' contentions are without merit, but in the context of the factual situation presented here, we cannot find them controlling.

Appellee cites the following cases to support this contention that the courts have strictly enforced the thirty day filing period in zoning appeals. Kravitz v. Zoning Board of Adjustment, 415 Pa. 97, 202 A.2d 64 (1964); Blank v. Zoning Board of Adjustment, 390 Pa. 636, 136 A.2d 695 (1957); Long v. Zoning Board of Adjustment, 23 D. & C. 2d 150 (1961). Moreover, courts have required strict adherence to the procedure prescribed by the Legislature. Oteri Appeal, 372 Pa. 94 A.2d 772, 557 (1963). But in every instance where an appeal was quashed due to a lapse of time, the appellant failed to file any notice of intent to appeal within the time period. Similarly, where courts have quashed a departure from the prescribed statutorial

[ 1 Pa. Commw. Page 37]

    procedure there was a substantial deviation. See Oteri, supra, where the appellant sought to bring a bill in equity in lieu of the statutory appeal. In these cases, the substantial departure consisted of a devious circumvention of the legislative purpose directed solely toward the allowance of an appeal. Justice commands a sensible and a practical approach to a factual situation. We think this is a classic case calling for the full use of this Court's interpretative powers in making a just and proper determination.

It is our judgment that time limitations have as their prime function notification to all parties that no appeal will be asserted beyond that date and the prospect of protracted litigation is laid to rest. The wheels of enforcement of ...


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