Christiansen v. Zoning Board of Adjustment (Philadelphia)

Opinion by

Judge Crumlish, Jr.

This appeal is from an order of the court below quashing an appeal of a decision by the Philadelphia Zoning Board of Adjustment on the grounds that it had not been filed within the ordinance prescribed period of thirty days.

On July 9, 1969, the Zoning Board of Adjustment refused an application by Jerome Gross, for a variance on the premises 2338 East York Street, Philadelphia. On July 30, 1969, his counsel filed a writ of certiorari directed to the Board in the Office of the Prothonotary of the Court of Common Pleas of Philadelphia County. The writ was duly stamped and perfunctorily issued to the Board. However, the petition which, by the terms of the ordinance, should have accompanied the writ, was not filed at that time.

On August 6, 1969, the Zoning Board, by a person who is yet unidentified, reminded counsel for Gross that the petition was missing. Counsel indicated to the caller that he was in his office momentarily and was then about to leave on his vacation. With the assurance that the petition would be accepted when he returned, he resumed his holiday. On August 9, 1969, the prescribed appeal period expired.

When he returned on August 28, 1969, counsel filed the required petition. A Motion to Quash followed. Argument was heard in the Court of Common Pleas by Judge Sloane, who granted the Motion to Quash.

Section 14-1806 (1) of the Philadelphia Zoning Code provides that any party aggrieved by the decision of the Board may file a petition with the Common Pleas Court specifying the grounds for the appeal. “Such Petition shall be presented to the Court within thirty days after the filing of the decision in the office of the Board.” Subsection (2) of 14-1806 provides that the court, “upon presentation of such Petition, . . . may allow a Writ of Certiorari, directed to tbe Board, to review such decision of tbe Board . . .”.

Tbe failure to literally comply with tbe requirement that a petition be filed by a date certain, or the issuance of tbe writ by tbe Protbonotary without tbe petition is not in dispute. It is for us to consider the effect of these defects. Appellant, Gross, contends that either (1) the timely issuance of tbe writ in itself was sufficient to perfect tbe appeal, or (2) tbe untimely filing should be ignored in view of tbe assurances received from a representative of tbe Zoning Board.

Appellee relies on tbe doctrine that statutory procedural provisions for judicial review should be strictly construed and in this instance tbe petition having been filed after tbe thirty day statutory period, the writ was a technical nullity and tbe right of appeal lapsed. Further, appellee contends that tbe reliance by applicant’s counsel upon tbe telephoned assurances has no basis in law for ignoring bis failure to file bis appeal on time. We do not suggest that in tbe legal spectrum, tbe parties’ contentions are without merit, but in tbe context of tbe factual situation presented here, we cannot find them controlling.

Appellee cites the following cases to support this contention that tbe courts have strictly enforced tbe thirty day filing period in zoning appeals. Kravitz v. Zoning Board of Adjustment, 415 Pa. 97, 202 A. 2d 64 (1964); Blank v. Zoning Board of Adjustment, 390 Pa. 636, 136 A. 2d 695 (1957); Long v. Zoning Board of Adjustment, 23 D. & C. 2d 150 (1961). Moreover, courts have required strict adherence to tbe procedure prescribed by tbe Legislature. Oteri Appeal, 372 Pa. 94 A. 2d 772, 557 (1963). But in every instance where an appeal was quashed due to a lapse of time, tbe appellant failed to file any notice of intent to appeal within the time period. Similarity, where courts have quashed a departure from tbe prescribed statutorial procedure there was a substantial deviation. See Oteri, supra, where the appellant sought to bring a bill in equity in lieu of the statutory appeal. In these cases, the substantial departure consisted of a devious circumvention of the legislative purpose directed solely toward the allowance of an appeal. Justice commands a sensible and a practical approach to a factual situation. We think this is a classic case calling for the full use of this Court’s interpretative powers in making a just and proper determination.

It is our judgment that time limitations have as their prime function notification to all parties that no appeal will be asserted beyond that date and the prospect of protracted litigation is laid to rest. The wheels of enforcement of an order can then proceed in accordance with applicable law.

In the instant case, as is the custom in Philadelphia County, appellant filed a writ of certiorari which in due course was issued by the Prothonotary. It was served upon the Board well within the statutory period. Thus, all the parties, the court and the Board, were given timely notice that an appeal had been taken. The wheels of enforcement were arrested pending outcome of the appeal. The legislative purpose was accomplished, notwithstanding the missing component. Of course, if we would constrict our vision and consider the simultaneous companionship of the petition to be an integral and essential part of the appeal, the official order of the court is a nullity.

Referring to the facts of life as they pertain to Philadelphia Zoning Board appeals, it is recognized and was agreed by counsel for the Board at argument that the issuance of the writ is “ministerial”, “perfunctory” and “routine”. Although the ordinance specifically provides that the court upon receiving the petition “may” issue the writ, in practice a Common Pleas Judge never sees the petition, never considers its contents or the merits thereof, and the writ is issued as of course by a clerk in the Prothonotary’s office. The term “may” therefore is without meaning or efficacy. In effect, the statutorial requirement calling for the simultaneous presentation of a petition to warrant the issuance of the writ is honored more in ignorance than respect. Custom considers these appeals as of right. See Ryan, Pennsylvania Zoning Law and Practice, §9.5.1, p. 88 (1970). So we must view this kind of appeal with eyes wide open.

We must also say, however, that appellant’s contention that the issuance of a writ alone perfects the appeal lacks merit. We have found that in practice the petition is not the deliberative motivation which causes the writ to issue. It does, however, contain appellant’s allegations .-of error. It is a basic and essential part of the record. In this case, it is the belated filing of this petition which constitutes an integral part of perfecting this appeal. Indeed, had no petition been filed we would declare the appeal void. We merely say that the delayed filing was and is of no consequence.

The effect of assurances by an unfaced telephone correspondent is of little moment. Reliance upon assurances are generally considered not to be legally sufficient to extend the time limits. Commonwealth v. Philadelphia Eagles, Inc., 437 Pa. 25, 261 A. 2d 309 (1970). It is not necessary for us to consider the question of whether the time period was extended. We have concluded that the purpose of the statutory requirement was fulfilled in a timely, albeit, irregular fashion. If anything, the value of the assurances lies in the demonstration of good faith. Had the petition been filed late, without assurances from the Zoning Board Office, counsel would be hard put to explain his negligence to his client or to this Court.

We do not find that the late filing of the petition can be excused because of assurances given by a person in tbe Zoning Board Office or that a writ issued in itself effects an appeal.

We do find that in the instant case the issuance of the writ within the thirty day period was a legally sufficient method to effectuate that notification which is the statutorial purpose of the time limitation and that expeditious belated filing of the petition merely completed the necessary technical requirements. In granting the Motion to Quash, the court below erred. Order reversed.