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LINDY HOMES v. DOMINIC SABATINI (05/16/79)

decided: May 16, 1979.

LINDY HOMES, INC.
v.
DOMINIC SABATINI, COMMISSIONER, DEPARTMENT OF LICENSES AND INSPECTIONS, CITY OF PHILADELPHIA, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Lindy Homes, Inc. v. Dominic Sabatini, Commissioner, Department of Licenses and Inspections, City of Philadelphia, No. 4299 April Term, 1974.

COUNSEL

Barbara S. Gilbert, Deputy City Solicitor, with her Stephen A. Arinson, Chief Deputy City Solicitor, and Sheldon L. Albert, City Solicitor, for appellant.

Victor Wright, with him, of counsel, Fox, Rothschild, O'Brien & Frankel, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., Mencer, DiSalle, Craig and MacPhail. Judges Rogers and Blatt did not participate. Opinion by Judge Mencer. Dissenting Opinion by Judge Craig. Judge Wilkinson, Jr. joins in this dissent.

Author: Mencer

[ 42 Pa. Commw. Page 602]

Dominic Sabatini, the Commissioner of the Philadelphia Department of Licenses and Inspections (Commissioner) appeals from an order of the Court of Common Pleas of Philadelphia County directing the issuance of a peremptory writ of mandamus to compel the reinstatement of revoked zoning and building permits issued to Lindy Homes, Inc. (Lindy). Since Lindy had another adequate remedy through an appeal to the Philadelphia Zoning Board of Adjustment, the issuance of the writ of mandamus was improper and we must reverse the lower court.

Lindy is the owner of an undeveloped tract of land which, in 1972, was located in a zoning district in which multiple-family dwellings were permissible. In October 1972, Lindy submitted plans for the construction of a 30-unit apartment building. The plans were approved by the Philadelphia Department of Licenses and Inspections (Department), which issued the necessary zoning and building permits. Lindy began construction but, in March 1973, the Department revoked the permits because of Lindy's alleged failure to comply with the plans it had submitted. Lindy then submitted a new plan for the construction of a 23-unit apartment building. A new zoning permit was issued in August 1973 and a new building permit in September 1973. However, Lindy did not resume work on the site.

In November 1973, an ordinance was introduced in the Philadelphia City Council seeking to rezone the area of the site to "R-9a Residential," which designation does not permit multiple-family dwellings. This ordinance was passed by Council and was signed into law on December 14, 1973. On January 3, 1974, the Department revoked Lindy's zoning permit because of the change in zoning classification. On January 4, 1974, Lindy's building permit was also revoked

[ 42 Pa. Commw. Page 603]

    by the Department as a necessary consequence of the revocation of the zoning permit.

Lindy did not appeal either of these actions but, on April 22, 1974, almost four months later, filed a complaint in mandamus, seeking to compel the reinstatement of the building permit only and claiming damages in excess of $10,000. The preliminary objections of the Commissioner were denied, and a hearing was held at which only Lindy's president testified. On April 11, 1975, the Court, by Judge Sporkin, directed the reinstatement of the building and zoning permits and entered a verdict against the Commissioner in the amount of $3500. By order dated July 12, 1976, the Court, sitting en banc, dismissed the Commissioner's exceptions and increased the damages to $35,245. The Commissioner's appeal to this Court followed.

"Mandamus is an extraordinary remedy and will not be granted where there is another remedy available." Longstreth v. Kane, 3 Pa. Commonwealth Ct. 311, 312 (1971); see also Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970) (mandamus inappropriate to compel issuance of building permit where appeal to zoning board of adjustment available); Suburban Group, Inc. v. Gittings, 22 Pa. Commonwealth Ct. 295, 348 A.2d 490 (1975). The Department's decision to revoke Lindy's zoning permit could have been appealed to ...


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