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CITY PITTSBURGH AND PAUL J. IMHOFF v. COMMONWEALTH PENNSYLVANIA (05/01/79)

decided: May 1, 1979.

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 CORRECTION 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, APPELLANTS



No. 4 March Term, 1978, Appeal from the Decree of the Commonwealth Court at 908 C.D. 1974.

COUNSEL

Robert P. Kane, Atty. Gen., Frederick R. Nene, Asst. Atty. Gen., James C. Kuhn, III, Sp. Asst. Atty. Gen., for Commonwealth, Kane, Pauza, Beal and Calloway.

John M. Duff, Deputy Atty. Gen., Paul H. Titus, Pittsburgh, for Louis H. and Ethel Harvey and E. Louis and Edith Averbach.

Mead J. Mulvihill, Jr., City Sol., D. R. Pellegrini, Dep. City Sol., Pittsburgh, for appellees.

Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Eagen, C. J., filed a dissenting opinion in which Nix, J., joined. Nix, J., filed a dissenting opinion.

Author: Roberts

[ 485 Pa. Page 42]

OPINION OF THE COURT

On July 9, 1974, the City of Pittsburgh filed a complaint in equity in Commonwealth Court. The City sought to enjoin the Pennsylvania Bureau of Corrections' use, without a zoning permit, of 535 South Aiken Avenue as a pre-release center for female convicts. 535 South Aiken Avenue was zoned "residential." Commonwealth Court held that the Bureau, as an agent of the Commonwealth, was not required to comply with municipal zoning ordinances and regulations and dismissed the complaint. On appeal, this Court held that in exercising the power to zone, municipalities are agents of the Commonwealth, just as is the Bureau of Corrections. We further concluded that where there is an apparent conflict in the use of powers conferred upon Commonwealth agents by the Legislature, "we must look to the intent of the Legislature to determine which exercise of authority is to prevail." 468 Pa. 174, 182, 360 A.2d 607, 612 (1976). We noted also that, "The Legislature has explicitly directed that whenever zoning regulations impose higher standards 'than are required in any other statute' the zoning regulations 'shall govern.'" 468 Pa. at 185, 360 A.2d at 613. Thus, this Court held that the Bureau was not immune to Pittsburgh's zoning ordinances and regulations and reversed the decree of the Commonwealth Court. 468 Pa. 174, 360 A.2d 607 (1976).

Appellee City of Pittsburgh then amended its complaint to allege that three other properties were being used and occupied by the Bureau as pre-release centers in violation of local zoning regulations.*fn1 Commonwealth Court found the Bureau had unqualifiedly admitted this allegation and held that any facts in dispute were relevant only to defenses not

[ 485 Pa. Page 43]

    available to the Bureau. Commonwealth Court, en banc, therefore, granted summary judgment in favor of the City. On this appeal, the Bureau argues that Commonwealth Court erred in refusing to entertain its defense that the zoning ordinance is unconstitutionally vague, arbitrary and exclusionary.*fn2

It is established that, "the statutory remedy prescribed by the Legislature is the exclusive remedy to be pursued by one 'aggrieved' by a zoning ordinance . . ." Pittsburgh Outdoor Advertising v. Clairton, 390 Pa. 1, 9, 133 A.2d 542, 546 (1957). See also Honey Brook Township v. Alenovitz, 430 Pa. 614, 243 A.2d 330 (1968); Pittsburgh v. Oakhouse Associates, 8 Pa. Commw. 349, 301 A.2d 387 (1973). The Bureau concedes that Section 7 of the Act of 1927, 53 P.S. ยง 25057*fn3 creates the standard procedure ...


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