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BEEBE v. MEDIA ZONING HEARING BOARD AND HIBBERD (03/14/72)

decided: March 14, 1972.

BEEBE, ET AL.
v.
MEDIA ZONING HEARING BOARD AND HIBBERD, ET AL., ADDITIONAL PARTIES



Appeals from the Orders of the Court of Common Pleas of Delaware County, in cases of In Re: Appeal of Shell Oil Company from the Decision of the Zoning Hearing Board of the Borough of Media, No. 12374 of 1970 and In Re: Appeal of Fred Beebe, Marsha Miller, Robin Patterson, Richard Quigley and Giselle Quigley from the Order of the Zoning Hearing Board of the Borough of Media, No. 4049 of 1971.

COUNSEL

Anthony R. Semeraro, with him Matthew J. Ryan and Mullray, Ryan & Semeraro, for appellants.

Alexander A. DiSanti, with him Richard, Brian, DiSanti & Hamilton, P.A., for appellees.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Mencer.

Author: Mencer

[ 5 Pa. Commw. Page 30]

The use of a parcel of ground consisting of .8124 acres and located in the Borough of Media, Delaware County, is the subject of this lawsuit. The parcel is triangular in shape with its side boundaries formed by the intersection of Providence Road on its easterly side and Monroe Street on its westerly side. There is a residential dwelling located on the property which is inhabited by the owners, Walter H. Hibberd and Alberta Hibberd, husband and wife. On March 31, 1970, the owners of the property entered into an agreement with Shell Oil Corporation of America (Shell) whereby Shell obtained an option to purchase the property.

An application for a variance to permit the construction of a gasoline service station was made to the Media Zoning Hearing Board (Board) which conducted a hearing and thereafter denied the application. Shell petitioned the Court of Common Pleas of Delaware

[ 5 Pa. Commw. Page 31]

County for a writ of certiorari with the result that on November 25, 1970, that court remanded the case to the Board for the purpose of taking additional testimony. Following the taking of additional testimony, the Board granted the requested variance. Thereafter, certain residents of the Borough of Media (appellees) filed an appeal with the Court of Common Pleas of Delaware County.

Appellees had not been represented by counsel prior to this time and, in connection with the appeal, counsel for appellees, on May 5, 1971, filed a motion to remand the case to the Board for the purpose of taking further testimony. Appellees' motion to remand was scheduled for hearing on the same date the case was listed for argument before the court below and on that date, May 19, 1971, counsel for appellees agreed to withdraw his motion to remand upon agreement of counsel for appellants that certain evidence, consisting of two photographs of the dwelling located on the property and an affidavit taken of one of the appellees relative to the price paid for the property by the present owners, be admitted into evidence by the court below. In accordance with this stipulation of counsel, the said items of evidence were filed of record.

The lower court heard argument and filed an opinion and order under date of August 30, 1971, which reversed the Board's grant of the variance. Shell and the property owners appealed to this Court from the lower court's order of August 30, 1971. Appellees filed a motion to quash this appeal but this motion was withdrawn at oral argument.

We reluctantly remand this case to the Court of Common Pleas of Delaware County. However, we must do so since that court decided this case on the incorrect scope of review. The scope of review of a decision ...


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