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CITY PITTSBURGH ET AL. v. COMMONWEALTH PENNSYLVANIA ET AL. (12/08/77)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: December 8, 1977.

CITY OF PITTSBURGH ET AL., PLAINTIFFS
v.
COMMONWEALTH OF PENNSYLVANIA ET AL., DEFENDANTS; JUNE B. COHEN, INDIVIDUALLY, PARTY PLAINTIFF

Original Jurisdiction in case of City of Pittsburgh and Paul J. Imhoff, Superintendent of the Bureau of Building Inspection of the City of Pittsburgh, v. Commonwealth of Pennsylvania; Robert Kane, Attorney General of the Commonwealth of Pennsylvania; Joseph A. Pauza, Regional Director of the Bureau of Corrections of the Department of Justice of the Commonwealth of Pennsylvania; Frank S. Beal, Secretary of the Department of Welfare of the Commonwealth of Pennsylvania; Anna Belle Calloway, Deputy Secretary, Department of Public Welfare; Louis H. Harvey; Ethel Harvey; E. Louis Averbach; Edith Averbach; Aero Fleet, Inc., a corporation; and Irwin Kotovsky.

COUNSEL

Eugene B. Strassburger, III, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for plaintiffs.

Frederick R. Nene, Assistant Attorney General, with him Kellen McClendon, Assistant Attorney General, and Robert P. Kane, Attorney General, for defendant, Commonwealth.

Paul H. Titus, with him Lawrence W. Kaplan, and Kaufman & Harris, for defendants, Harvey and Averbach.

President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Rogers and Blatt.

Author: Per Curiam

[ 32 Pa. Commw. Page 597]

In City of Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d 607 (1976), reversing this Court and remanding the case to us for further proceedings, the Supreme Court concluded that the Bureau of Corrections, Department of Justice of the Commonwealth, in operating a pre-release center for women convicts at 535 South Aiken Avenue, in the City of Pittsburgh, without a certificate of occupancy, variance or other authorization for such use was in violation of the local zoning regulations, as such use and occupancy for such purpose is subject to the local zoning ordinance.

Upon remand to this Court, the plaintiff, City of Pittsburgh, filed an amended complaint in equity identifying three additional properties in the City being used and occupied by the Commonwealth, or its contractees, as pre-release centers; 501 North Negley Avenue (community treatment center), 915 Ridge Avenue (community service center housing adult convicts),*fn1 and 7228 Thomas Boulevard (community residential

[ 32 Pa. Commw. Page 598]

    center housing juvenile offenders). Answer with new matter to the amended complaint, plaintiffs' reply to new matter, plaintiffs' motion for summary judgment (Pa. R.C.P. No. 1035), and defendants' affidavits*fn2 in opposition thereto comprise the record now before us on remand.

An examination of the record for the purpose of passing upon plaintiffs' motion for summary judgment discloses an unqualified admission by defendants that the several premises in question are being operated as pre-release centers without a certificate of occupancy, a variance or other authorization for such use having been issued under the local zoning ordinance.

Factual averments in the affidavits filed by defendants in opposition to the plaintiffs' motion for summary judgment and in new matter contained in defendants' answer to plaintiffs' amended complaint are supportive of legal theories not available to defendants in this cause of action seeking injunctive relief against defendants in their use and occupancy of the several premises without the necessary permits or authorizations under the local zoning ordinance. Honey Brook Township v. Alenovitz, 430 Pa. 614, 243 A.2d 330 (1968); Pittsburgh v. Oakhouse Associates, 8 Pa. Commonwealth Ct. 349, 301 A.2d 387 (1973). Such legal issues are properly raised only through the applicable zoning procedures and judicial review thereof.

Given the decision of the Supreme Court in this case and on its remand to us, the unqualified admission that the several premises in question are being used and occupied without a certificate of occupancy, a variance or other authorization for such uses, plaintiffs'

[ 32 Pa. Commw. Page 599]

    entitlement to the relief they seek is factually uncontested and clear as a matter of law. Accordingly, plaintiffs' motion for summary judgment must be granted.

Final Decree

Now, December 8, 1977, plaintiffs' motion for summary judgment is hereby granted and judgment in favor of plaintiffs and against defendants concerned in the operation of and use and occupancy of premises known and numbered as 535 South Aiken Avenue, 501 North Negley Avenue and 7228 Thomas Boulevard, City of Pittsburgh, as pre-release or community treatment centers.

A hearing upon the precise injunctive relief to be granted will be fixed upon the praecipe of any party to these proceedings.

Disposition

Motion of plaintiffs for summary judgment granted.


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