Ottaviano v. Soc. Hill Civ. A.

Full title: Joseph Ottaviano, Appellant v. Society Hill Civic Association, Appellee

Court: Commonwealth Court of Pennsylvania

Date published: Apr 7, 1983

457 A.2d 1041 (Pa. Cmmw. Ct. 1983)

457 A.2d 1041

Opinion

Argued December 15, 1982

April 7, 1983.

Zoning — Compliance with procedural rules — Captioning — Notice — Motion to quash.

1. A motion to quash a zoning appeal is improperly denied when the appellant failed to comply with local procedural rules governing such appeals by incorrectly captioning the appeal and failing to give proper notice of the appeal to the detriment of other parties. [309-10]

Argued December 15, 1982, before Judges BLATT, WILLIAMS, JR. and DOYLE, sitting as a panel of three.

Appeal, No. 176 C.D. 1982, from the Order of the Court of Common Pleas of Philadelphia County in case of Society Hill Civic Association v. Philadelphia Zoning Board of Adjustment and Joseph Ottaviano, No. 2499 January Term, 1980.

Application for zoning permit and/or use registration permit denied by City of Philadelphia. Applicant filed petition of appeal to Zoning Board of Adjustment of the City of Philadelphia requesting variance. Variance granted. Protestants filed petition for certiorari in Court of Common Pleas of Philadelphia County. Writ of certiorari directed to be issued. Petition to quash appeal filed by property owner. Petition denied. Argument heard. Appeal of protestants sustained. Board decision reversed. GELFAND, J. Owner appealed to the Commonwealth Court of Pennsylvania. Held: Denial of petition to quash appeal reversed. Order sustaining appeal of protestants vacated.

Carl S. Primavera, Presenza and DiBona Law Offices, for appellant.

Samuel Rappaport, Rappaport and Furman, with him Jill A. Douthett, Deputy City Solicitor, for appellee.

OPINION BY JUDGE DOYLE, April 7, 1983:

This is an appeal by Joseph Ottaviano (Petitioner) from two orders of the Court of Common Pleas of Philadelphia County. One order denied Petitioner's motion to quash the appeal of the Society Hill Civic Association (Civic Association) from a decision of the Zoning Hearing Board of Adjustment (Board) of the City of Philadelphia (City) which granted Petitioner a variance. The other order of the common pleas court appealed here sustained the Civic Association appeal and reversed the Board.

Joseph Ottaviano is the owner of premises at 332 Delancy Street in Philadelphia. On October 17, 1979, he requested to change his property from a one family dwelling to a three family dwelling. Permission was denied and Petitioner appealed to the Board. At a public hearing before the Board, the Civic Association appeared with counsel and presented testimony against the variance. On December 20, 1979, the Board granted the variance by unanimous vote. The Civic Association filed a Petition in the court of common pleas for a writ of certiorari to the Zoning Board of Adjustment on January 18, 1980 naming Joseph Ottaviano as Defendant. On February 5, 1980, the court of common pleas directed the Prothonotary to issue a writ of certiorari. On February 11, 1980, a copy of the order directing issue of the writ was mailed to Petitioner's attorney by the Prothonotary. On February 25, 1980, Notice of the appeal was sent to Petitioner by the Civic Association. Thereafter, Petitioner moved to quash the appeal, or alternatively, to require posting of bond. The motion was denied and after argument on the merits, the appeal by the Civic Association was sustained.

Petitioner urges that the court of common pleas erred in refusing to quash the appeal. We agree. Failure to strictly comply with procedural and time requirements will result in the quashing of a zoning appeal. King Productions, Inc. v. Board of Adjustment of the City of Pittsburgh, 27 Pa. Commw. 256, 367 A.2d 322 (1976). In the case before us, the Civic Association incorrectly captioned the appeal of the Zoning Hearing Board decision. Philadelphia Code § 14-1806(3) provides that the Board shall be respondent in zoning appeals; the Civic Association named Ottaviano as respondent. More importantly, the Civic Association failed to serve Petitioner with notice of the appeal until February 25, 1980. Philadelphia Civil Rule 320(A) provides in pertinent part:

Within ten (10) days after the allowance by the Court of Common Pleas of a writ of certiorari, on petition to review a decision of the Zoning Board of Adjustment, the petitioner shall give notice in writing of the term and number of such appeal to all persons who shall have entered an appearance in writing in the proceedings before the Zoning Board of Adjustment. . . .

The writ of certiorari was issue on February 5, 1980. The Civic Association did not provide the required notice until February 25, 1980. The Civic Association clearly failed to comply with the local rule. Further, we note that the failure was not without harm to Petitioner, who, by the time he received notice of the appeal, had secured permits pursuant to the grant of the variance and begun the conversion of the premises.

Under these circumstances, it was error to refuse to quash the Civic Association appeal.

ORDER

NOW, April 7, 1983, the order of the Court of Common Pleas of Philadelphia County dated January 2, 1981, denying, the petition to quash the appeal in the above referenced matter is reversed and the order of December 31, 1981 sustaining said appeal is vacated.