Appeal from the decree of the Court of Common Pleas of Philadelphia, sitting in equity, No. 1911, April Term, 1968, in case of City of Philadelphia v. Stradford Arms, Inc. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.
Carl K. Zucker, Deputy City Solicitor, with him, Levy Anderson, City Solicitor and Paul L. Rucci, Assistant City Solicitor, for appellant.
Irvin Stander, for appellee.
President Judge Bowman, and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Opinion by Judge Manderino. Judge Mencer dissents.
Appellee, Stradford Arms, Inc., completed construction in September, 1962, of apartment dwellings at premises located on Blakiston Street in the City of Philadelphia. The buildings constructed had a setback of only three feet six inches on one side and off-street parking space amounting to 10,394 feet. In both of these respects, the buildings did not comply with the requirements of the zoning regulations of Philadelphia. The zoning regulations required the setback to be eight (8) feet and the off-street parking area to be eleven thousand (11,000) square feet.
An application for a variance by Stradford was denied by the Zoning Board of Adjustment, and the denial was upheld on appeal. Stratford Arms, Inc. v. Zoning Board of Adjustment, 429 Pa. 132, 239 A.2d 325 (1968).
Subsequently the City of Philadelphia brought an action in equity against Stradford to require compliance with the zoning ordinance. This is the case before us. The City requested compliance and also a fine of Three Hundred ($300.00) Dollars per week for each week of violation. A full hearing on the matter was held in the Court of Common Pleas of Philadelphia County which resulted in a decree nisi directing Stradford to pay Ten ($10.00) Dollars per week from July 31, 1962, to July 31, 1968. (Stradford calculated this to be approximately Three Thousand One Hundred ($3,100.00) Dollars). Following an en banc hearing the court increased the fine and ordered Stradford to pay Fifteen ($15.00) Dollars per week until the premises were brought into compliance. (Stradford calculated this to be approximately Thirty-Five Thousand ($35,000) Dollars over the life of the apartments).
From this order the City of Philadelphia appealed to the Supreme Court of Pennsylvania and under the Commonwealth Court Act (Act No. 185 of January 6, 1970); 17 P.S. 211.13 (1970), the appeal was transferred to the Commonwealth Court.
In its findings, the Common Pleas Court found that the "setback deficiency was unintentional on the part of defendant." It further found that although the parking area was deficient, the existing space was "adequate for the needs of the residents." The court also found that the apartment buildings did not "constitute a nuisance" nor did they "adversely affect the health, welfare and safety of the surrounding community." These were the key findings upon which the court entered its order.
The appellant, City of Philadelphia, does not contend that there was any abuse of discretion in the court's findings and our reading of the record indicates that there was ...