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PENNYPACK MANOR NURSING HOME v. NICHOLAS PETRELLA (05/22/78)

decided: May 22, 1978.

PENNYPACK MANOR NURSING HOME, INC.
v.
NICHOLAS PETRELLA, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Pennypack Manor Nursing Home, Inc. v. Philadelphia Zoning Board of Adjustment, No. 1841 September Term, 1974.

COUNSEL

Austin J. McGreal, for appellant.

Harold Cramer, for appellee.

Barbara S. Gilbert, Deputy City Solicitor, with her Sheldon L. Albert, City Solicitor, for amicus curiae, Zoning Board of Adjustment, City of Philadelphia.

Judges Wilkinson, Jr., Blatt and DiSalle, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.

Author: Wilkinson

[ 35 Pa. Commw. Page 369]

This case comes before us on appeal from a decision of the Court of Common Pleas of Philadelphia County which directed the Philadelphia Department of Licenses and Inspections (Department) to issue a certificate to the appellee for the construction of an addition to a nursing home. The Zoning Board of Adjustment (Board) had refused the requested certificate, which is in the nature of a special exception. We affirm the lower court.

Appellee operates a nursing home known as Pennypack Manor in an area of Philadelphia zoned "R-5 Residential." Rest, old age and nursing homes are expressly permitted in an R-5 area provided a Board certificate is obtained. Under Section 14-1803(2) of the Philadelphia Code (Code), an applicant for a Board certificate has the duty of presenting evidence to show he meets the criteria which the Board must consider in granting a certificate. Section 14-1803(1) of the Code enumerates these criteria, including, inter alia, whether the grant of the certificate will increase traffic congestion, pose a fire hazard, or adversely affect the public health, safety, or general welfare.

Pennypack Manor currently has a 56 bed capacity. Appellee seeks to obtain a certificate for the construction of a two-story addition which would increase the capacity of the nursing home to 126 beds. The Department initially denied the appellee's application for a zoning permit, finding that the parking area for the new addition had a proposed setback from Lawndale Avenue of only four feet instead of the required eight feet. Appellee then appealed to the Board, which denied appellee's request for a certificate. With respect to the setback, the Board reaffirmed the Department's findings regarding the setback violation and found that appellee had failed to demonstrate unnecessary hardship or any of the other requirements

[ 35 Pa. Commw. Page 370]

    for a special exception. Noting substantial opposition to the appellee's project from the appellant and other neighborhood residents, the Board found that the appellee had failed to meet the criteria set forth in Section 14-1803(1) of the Code relative to the granting of a certificate.

The trial court, which took additional evidence, decided the case de novo and ordered that the certificate be granted. The trial court specifically found that the appellee had "presented substantial, persuasive and extensive evidence relating to all the criteria to be considered by the Board in granting a certificate and accordingly met the burden imposed upon it by law." On the other hand, the lower court concluded that those who opposed granting the certificate had failed to carry their burden of demonstrating that the grant of a certificate would harm the health, safety and general welfare of the public. The trial court also reversed the Board regarding the matter of the set back, since it admitted into evidence a report from the Department that it had withdrawn its objection to the appellee's planned expansion. The plans initially submitted by the appellee incorrectly showed only a four foot setback, and upon reexamination by the Department it dropped its objection and found that the appellee was not in violation of the setback requirements.

Three issues have been raised by appellant in his appeal. First, appellant contends that the lower court should not have received into evidence testimony as to the Department's removal of its objection to the appellee's plan. He argues that he should have been allowed to appeal the Department's action to the Board before the lower court could give the matter any consideration. This contention is without merit. ...


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