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ANTHONY RUSHFORD ET AL. v. ZONING BOARD ADJUSTMENT PITTSBURGH ET AL. GREGORY J. WINOKUR AND AMY G. WINOKUR (04/02/84)

decided: April 2, 1984.

ANTHONY RUSHFORD ET AL.
v.
ZONING BOARD OF ADJUSTMENT OF PITTSBURGH ET AL. GREGORY J. WINOKUR AND AMY G. WINOKUR, HIS WIFE, AND A. G. ASSOCIATES, APPELLANTS



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Anthony Rushford and Alison Rushford, his wife, David Ketchum and Sally Ketchum, his wife, and Ray Williams v. Zoning Board of Adjustment of Pittsburgh, No. SA 1202 of 1981, Z.B.A.

COUNSEL

John M. Silvestri, for appellants.

James G. Dunn, Wymard & Dunn, for appellees.

Judges Williams, Jr., Barry and Blatt, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 81 Pa. Commw. Page 276]

This appeal arises from an order of the Court of Common Pleas of Allegheny County, reversing an order of the Zoning Board of Adjustment of Pittsburgh (Board) which granted a variance to the appellants, Gregory J. Winokur and Amy G. Winokur, his wife.

The appellants sought a rear yard variance of twenty-one feet from the Board in order to put an addition containing an indoor swimming pool to the rear of an existing single family dwelling. The Board held a hearing on August 6, 1981. On September 17, 1981, the Board granted the application. The present appellees, Anthony and Alison Rushford, David and Sally Ketchum and Ray Williams, neighbors of appellants, filed a timely appeal on October 16, 1981, by which time appellants had commenced construction. The appellants filed a notice of intervention and a motion to quash the appeal alleging the failure to properly serve appellants with notice of the appeal and a true and correct copy of a petition for bond which were necessary as a condition to proceed with the appeal.

Pursuant to Allegheny County Local Rule of Civil Procedure 212, a pre-trial conciliation was scheduled for November 16, 1981. When appellants' attorney failed to appear, allegedly because he was not notified, the trial court held an ex parte conciliation. Without holding a hearing or allowing argument, the trial court on December 24, 1981, denied appellants' motion to quash and petition for bond. At that time, the court gave appellants twenty days to file a brief on the merits of the appeal. On January 22, 1982, the trial court, without taking additional testimony reversed the Board's grant of a variance. This appeal followed.

[ 81 Pa. Commw. Page 277]

Appellants argue that the trial court denied them due process for a number of reasons. They claim that the trial court erred when it conducted a conciliation with only appellees' counsel present. The trial court scheduled this conciliation before appellants had filed their timely notice of intervention. Appellants claim that conducting the conciliation when they were not present gives an appearance of impropriety and "gives rise to a cloud over the fairness in the handling of this case." However, we cannot agree. The appellants incurred no deprivation of their rights since a conciliation merely offers the opportunity to discuss the settlement of a case. As appellants can show no specific prejudice, this claim is meritless.

The appellants next contend that Section 1008 of the Pennsylvania Municipalities Planning Code (Code), Act of June 1, 1972, P.L. , as amended, 53 P.S. § 11008, requires a hearing where a landowner files a petition for bond in order to determine whether an appeal is frivolous or taken for the purpose of delay. We need not address this contention since the Code does not apply to the City of Pittsburgh because the definition of a municipality does not include cities of the second class (i.e. Pittsburgh).*fn1 53 P.S. § 10107(13) (Supp. 1983-84).

Appellants next argue that the court erred in refusing to allow oral argument on the motion to quash. Appellants rely on Pa. R.C.P. No. 211 and Nigrelli v. Cody, 281 Pa. Superior Ct. 156, 421 A.2d 1195 (1980). Pa. R.C.P. No. 211 provides:

Any party or his attorney shall have the right to require oral argument. With the approval of the court, ...


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