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COMMONWEALTH PENNSYLVANIA v. JOHN DURBIN AND ROMILDA M. DURBIN (03/16/76)

decided: March 16, 1976.

COMMONWEALTH OF PENNSYLVANIA, INDUSTRIAL BOARD
v.
JOHN DURBIN AND ROMILDA M. DURBIN, D/B/A SENATE HOTEL, APPELLANTS



Appeal from the Order of the Industrial Board of the Department of Labor and Industry in case of In Re: Application of John Durbin and Romilda M. Durbin, d/b/a Senate Hotel, for a variance to Chapter 4, Table 4 and Chapter 27, Section 2703(b) of the Building Regulations for Protection from Fire and Panic, No. 508-BI-S.

COUNSEL

Henry E. Harner, with him Robert J. Trace, for appellants.

David A. Ody, Assistant Attorney General, with him Herbert S. Cohen, Assistant Attorney General, and Charles S. Solit, General Counsel, for appellee.

Judges Crumlish, Jr., Wilkinson, Jr., and Mencer, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 24 Pa. Commw. Page 59]

This is the appeal of John Durbin and Romilda M. Durbin, d/b/a Senate Hotel (Appellants), from an order of the Industrial Board, Department of Labor and Industry (Department), Appellee herein, which denied them a variance from the height limitations imposed upon the hotel building by Chapter 4, Table 4, of the Building Regulations for Protection from Fire and Panic, 34 Pa. Code ยง 37.255. They argue that the Board abused its discretion. We are not convinced and accordingly affirm the Board.

Appellants, owners of the Senate Hotel in Harrisburg, sought a variance from 1) an order requiring their submission of architectural plans relating to the building and its emergency lighting system and 2) Item 3 of that same order prohibiting further occupancy of the fourth, fifth and sixth floors of the hotel. The building is classified

[ 24 Pa. Commw. Page 60]

    as Type V (Ordinary) construction under the Fire and Panic Act,*fn1 C-2 (Group) occupancy, and is a six-floor structure. Some fifteen permanent residents occupy the fourth, fifth and sixth floors of the hotel.

Appellants say that when they bought the building in 1960 they submitted plans to the Department, which in due course were approved, and further they assert that the approval included the use of all six floors of the hotel. A Department witness testified that although Appellants had submitted plans in 1960, there is no record of final approval for use of the building, nor the issuance of a certificate of occupancy.

The legal bases upon which the Board denied the variance are found in the Board's conclusions of law, which state:

"1. Chapter 4, Table 4, of the Building Regulations for Protection from Fire and Panic imposes height and structural limitations for various types of occupancy and prescribes a height limitation of three (3) floors for Type V (Ordinary) ...


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