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SCHUBACH ET AL. v. SILVER (08/09/72)

decided: August 9, 1972.

SCHUBACH ET AL., APPELLANTS,
v.
SILVER



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1970, No. 325, in case of Fred Schubach and Florence Schubach, Raymond Hrubovak and Doris Hrubovak et al. v. David Silver.

COUNSEL

J. Leon Rabben, for appellants.

Irvin Stander, John Mattioni, Deputy City Solicitor, Henry W. Sawyer, III, with them David W. Maxey, Ward T. Williams, and Drinker, Biddle & Reath, and Howard D. Scher, Assistant City Solicitor, and Martin Weinberg, City Solicitor, for appellees.

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

Author: O'brien

[ 448 Pa. Page 422]

The parties to the instant appeal are no strangers to this Court, we having decided a prior appeal in this complex of litigation in Schubach v. Zoning Bd. of Adj., 440 Pa. 249, 270 A.2d 397 (1970). In that case, the present appellants, who were also appellants there, appealed from a decision of the Court of Common Pleas

[ 448 Pa. Page 423]

    of Philadelphia affirming a decision of the Zoning Board of Adjustment of Philadelphia.

The City of Philadelphia had rezoned a tract of land from R-4 to C-2, thereby allowing the erection of a nursing home for physically and mentally retarded persons. We found the zoning ordinance to be "a classic instance of spot zoning," declared the rezoning ordinance invalid and reversed.

Thereafter, construction of the premises continued under the building permit which had been issued by the City of Philadelphia subsequent to the rezoning but prior to our declaration of invalidity of that rezoning, which occurred on October 9, 1970. The continuance of construction led to a petition to this Court by the successful appellants for an order to enforce our decision of October 9, 1970. On January 29, 1971, we entered an order which, inter alia, directed that no further construction of the nursing home be continued nor any operation of that nursing home be commenced until after the determination of certain equity proceedings then pending in the Court of Common Pleas.

In the interim, on January 18, 1971, the City of Philadelphia rezoned a larger area, including the area previously rezoned, to C-2, and that rezoning has been found valid by the Court of Common Pleas of Philadelphia. Appellants have appealed that determination to this Court and have, in addition, requested that this Court impose sanctions on appellees for violation of this Court's order of January 29, 1971. Appellees have petitioned this Court for modification of our January 29, 1971, order.

[ 448 Pa. Page 424]

The appeal on the merits in this equity action properly lies in the Commonwealth Court. 17 P.S. § 211.402(4), 17 P.S. § 211.503(a) and (b). L. 406, S.E.I. Union, AFL-CIO v. Lack. Co., 447 Pa. 603, 290 A.2d 698 (1972), Green T. Boro. v. Alleg. Co. Bd. of P. A., 446 Pa. 309, 285 A.2d 165 (1971), Pittsburgh F. Fighters Page 424} v. Pittsburgh, 444 Pa. 616, 281 A.2d 637 (1971). The modification of our order of January 29, 1971, or the imposition of sanctions for its violation are matters which we must consider and determine. We shall, therefore, transfer the appeal to the Commonwealth Court while retaining ...


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