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PHILADELPHIA ZONING BOARD ADJUSTMENT AND CITY PHILADELPHIA v. UNIVERSITY CITY HOUSING CO. (12/16/88)

decided: December 16, 1988.

PHILADELPHIA ZONING BOARD OF ADJUSTMENT AND CITY OF PHILADELPHIA, APPELLANTS
v.
UNIVERSITY CITY HOUSING CO., APPELLEE



Appeal of the Court of Common Pleas of Philadelphia County, in the case of University City Housing Co. v. City of Philadelphia, No. 4666 December Term, 1985.

COUNSEL

Carl Oxholm, III, with him, Rosalie M. Leonard, Chief Assistant City Solicitor, for appellants.

Michael Sklaroff, with him, Dean Jerrehian, Ballard, Spahr, Andrews & Ingersoll, for appellee.

Judges Barry and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge McGinley. Judge MacPhail did not participate in the decision in this case.

Author: Mcginley

[ 122 Pa. Commw. Page 181]

The City of Philadelphia (City) and the Zoning Board of Adjustment of the City of Philadelphia (Board) appeal the order of the Court of Common Pleas of Philadelphia County (common pleas court) granting the appeal of University City Housing Company (University) due to the failure of the Board to file its certified record in violation of Philadelphia Rule 146(VII)(B) of the Philadelphia Local Rules of Civil Procedure. We vacate and remand.

University is in the business of leasing housing to undergraduate and graduate students in the vicinity of the University of Pennsylvania in Philadelphia. On July 15, 1985, University filed an application for a use permit for the property located at 301 S. 40th Street, Philadelphia, an R-10 Residential District, to accommodate nine people. On August 22, 1985, the application was denied by the Department of Licenses and Inspections on the grounds that certain dimensional requirements regarding the side and rear yard were not met.*fn1 On

[ 122 Pa. Commw. Page 182]

September 19, 1985, University filed an appeal with the Board and after a hearing the Board denied the requested variance. On December 2, 1985, University filed a timely notice of appeal with the common pleas court. According to Rule 146(VII)(B) of the Philadelphia Local Rules of Civil Procedure, the Board was required to transmit the certified record to the common pleas court within 40 days after receipt of the Notice of Appeal. The Board failed to transmit the record within the allotted 40 days. A mandatory status conference was scheduled with a Judge assigned from the common pleas court. The first conference was held on June 17, 1987 and the common pleas court, with the agreement of the parties, listed the case as "Must Be Disposed Of".*fn2 However, on August 26, 1987, the Board had not submitted its findings of fact and conclusions of law and University's appeal was granted because of the Board's failure to produce the certified record, including the Board's findings of fact and conclusions of law. The City filed a "Praecipe to Intervene" on August 26, 1987 after the common pleas court granted University's appeal. On September 8, 1987, the common pleas court entered a general order allowing the City to intervene as of right as an Appellee in all appeals from the Board pending before the Philadelphia Court of Common Pleas. This order, although not issued as a result of the City's Praecipe to Intervene, was entered within the 30 day appeal period for this case. The City and the Board filed a petition

[ 122 Pa. Commw. Page 183]

    for reconsideration on September 8, 1987, which was denied by the common pleas court on September 9, 1987. This appeal followed.

The issues before us are, firstly, whether the City has properly intervened*fn3 and is a proper party on appeal from the common pleas court's review of the Board's decision, and secondly, whether the common pleas court erred in granting University's appeal.

University argues that the City did not intervene in compliance with Section 1009 of the Pennsylvania Municipalities Planning Code (MPC)*fn4 and the Pennsylvania Rules of ...


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