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FRED SCHUBACH AND FLORENCE SCHUBACH v. DAVID SILVER ET AL. (03/18/75)

decided: March 18, 1975.

FRED SCHUBACH AND FLORENCE SCHUBACH, APPELLEES, RAYMOND HRUBOVAK ET AL., APPELLEES, ALEXANDER G. ALLISON AND DOROTHY ALLISON
v.
DAVID SILVER ET AL., APPELLANTS, AND CITY OF PHILADELPHIA AND GIRARD TRUST BANK, INTERVENOR-DEFENDANT, APPELLANT (TWO CASES)



COUNSEL

Irvin Stander, Philadelphia, for David Silver and Pine Hill Home, Inc.

Henry W. Sawyer, III, David W. Maxey, Ward T. Williams, Drinker, Biddle & Reath, Philadelphia, for Girard Trust Bank.

J. Leon Rabben, Philadelphia, for appellees, Fred Schubach, Florence Schubach, Dr. Leon S. Caplan and Rosemarie E. Caplan.

R. L. Bazelon, Philadelphia, amicus curiae.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Roberts, J., concur in the result.

Author: Eagen

[ 461 Pa. Page 370]

OPINION OF THE COURT

Once again this Court is faced with the legal issues surrounding the controversy which has arisen over the construction of the Pine Hill Home, a nursing home facility for multiple handicapped children, in the northeast section of the City of Philadelphia. Instantly, we are faced with the question of whether a rezoning of the area upon which the Home is constructed was unconstitutional as spot zoning. To facilitate an understanding of the complex legal issues and their resolution, we will undertake a complete procedural and factual background of the controversy.

PROCEDURAL BACKGROUND

In 1966, Pine Hill Home, Inc., [appellant instantly] purchased a two-acre tract of land in Northeast Philadelphia. At the time of purchase the land was zoned R-4

[ 461 Pa. Page 371]

[residential].*fn1 In 1966, Pine Hill filed an application with the Philadelphia Zoning Board for a special certificate to allow the construction of the Home. The Application was refused by the Zoning Board, and the Court of Common Pleas affirmed the denial on appeal. In 1967, Pine Hill made an effort to have the land rezoned from an R-4 to C-2, a commercial classification, under which the Home could be built without a special certificate. City Council, however refused to pass the rezoning measure. In 1968, Pine Hill once again requested City Council to rezone the land from R-4 to C-2, and this time the Ordinance (No. 36) providing for the rezoning successfully passed City Council.*fn2

Fred Schubach and a group of neighborhood residents [appellees instantly] appealed the enactment of Ordinance 36 to the Zoning Board of Adjustment alleging the Ordinance constituted spot zoning and was, therefore, unconstitutional. After a hearing, the Zoning Board dismissed the appeal. Thereafter, an appeal was immediately taken to the Court of Common Pleas which sustained the action of the Zoning Board.*fn3

[ 461 Pa. Page 372]

From the judgment of the Court of Common Pleas an appeal was taken to this Court, and on October 9, 1970, this Court in an opinion by Mr. Justice Jones [now Mr. Chief Justice] reversed the lower court and declared Ordinance 36 to be a "classic" case of spot zoning. Schubach Page 372} v. Zoning Board of Adjustment, 440 Pa. 249, 270 A.2d 397 (1970) [hereinafter Schubach I ]. Notwithstanding the decision of this Court the city of Philadelphia failed to revoke the outstanding building permits and Pine Hill continued construction of the Home.*fn4

The failure of Pine Hill to cease construction after the decision of this Court in Schubach I precipitated the initiation of the instant action. On December 8, 1970, Schubach filed an action in equity in the Court of Common Pleas seeking to enforce this Court's decision and enjoin further construction of the Home, have the building permits revoked, the structure as it then existed demolished, and the award of money damages to the individual appellees. Schubach thereafter, on January 12, 1971, petitioned this Court for a directive order to the lower court to enforce the ruling in Schubach I. Upon receiving notice of the petition filed in this Court, the city revoked the outstanding building permits.

Before this Court took action on the petition for the directive order, City Council of Philadelphia passed Ordinance No. 2139 which rezoned the Pine Hill land and some adjoining property from R-4 to C-2 and on January 27, 1971, the city reinstated the building permits for the Home.*fn5

On January 29, 1971, this Court, through Mr. Chief Justice Jones, issued an order enjoining the further construction and operation of the Home pending the outcome of the equity action. The city thereafter revoked all outstanding permits.

[ 461 Pa. Page 373]

In the equity action, the appellants*fn6 were allowed to file Supplemental New Matter to their pleadings asserting the validity of the new zoning measure, Ordinance 2139. Appellees' basis for relief in the lower court was: the Home was constructed contrary to Schubach I; Schubach I was res judicata; the Home constituted a private nuisance; and, Ordinance 2139 was unconstitutional as spot zoning.

Following an extensive hearing before Judge Sporkin, sitting as a chancellor, a decree nisi and opinion was filed denying all of appellees' contentions. Specifically, Judge Sporkin found that: (1) a court sitting in equity had jurisdiction to consider the instant matter; (2) that Ordinance 2139 was constitutional and did not constitute spot zoning; (3) the Home did not constitute a private nuisance; (4) Schubach I was not res judicata; (5) that appellees were not entitled to private damages; and continuation of construction after this Court's decision in Schubach I was contrary to that decision. Exceptions were filed and a court sitting en banc filed a supplemental opinion dismissing the exceptions and making the decree nisi final, but a fine in the amount of $4200 was assessed against Pine Hill to be paid to the city for violation of the Philadelphia Zoning Code.

An appeal was taken to this Court, however, we transferred the appeal to the Commonwealth Court. 448 Pa. 421, 293 A.2d 884 (1972).*fn7 The Commonwealth Court [opinion, Judge Blatt] unanimously concluded Ordinance

[ 461 Pa. Page 3742139]

constituted spot zoning, and, hence, was invalid. The Commonwealth Court also concluded "that certain of the determinations" made by this Court in Schubach I were conclusive and could not now be re-examined because of collateral estoppel. The Commonwealth Court, therefore, reversed the decree of the Court of Common Pleas. We granted allocatur.

FACTUAL BACKGROUND

The facts surrounding the controversy are ...


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