Liebtag v. Dilworth
| Decision Date | 11 May 1961 |
| Docket Number | 5,2889 |
| Citation | 25 Pa. D. & C.2d 221 |
| Parties | Liebtag v. Dilworth |
| Court | Pennsylvania Commonwealth Court |
September term, 1960.
Motion for summary judgment and preliminary objections to complaint in mandamus.
Harry J. J. Bellwoar, Jr., for plaintiff.
Lenard L. Wolffe, assistant city solicitor, for defendants.
Edward W. Madeira, Jr., Leon H. Kline and Joseph H. Foster, for The Philadelphia Bar Association, amicus curiae.
Before MILNER, P. J., WATERS and ULLMAN, JJ.
We have before us for consideration plaintiff's motion for summary judgment under Pennsylvania Rule of Civil Procedure 1098 in this action in mandamus and defendants' preliminary objections in the nature of a demurrer to plaintiffs' complaint in mandamus. Plaintiff, in his complaint, contends that he has been unlawfully and improperly denied the right to appear before the zoning board of adjustment on behalf of a party who seeks a variance; that the zoning board of adjustment has promulgated an invalid regulation which prohibits non-lawyers from practicing before the board and has thereby unlawfully deprived him of his right to so appear and earn a livelihood.
The committee on the Unauthorized Practice of the Law of the Philadelphia Bar Association petitioned and was granted leave to intervene amicus curiae. Extensive and able briefs and supplementary briefs were filed by all counsel and the matter was fully argued. It was agreed at the time of argument of this matter on the consolidated motion list that the record would be submitted to, and be considered by, the full court in view of the important questions involved.
Plaintiff, in his complaint, sets forth that he " is an individual who has, since 1952, earned his livelihood as an agent or representative, appearing before the Zoning Board of Adjustment of the City of Philadelphia, on behalf of persons who are parties in interest in matters heard and decided by said Board" ; that on October 17, 1960, he appeared " as a duly authorized agent of a party seeking a zoning variance and filed an application therefore with the Zoning Division of the Department of Licenses and Inspections" and that " said application was considered by the Department and the variance was not granted so,[he], still acting in his capacity of duly authorized agent of the party in interest, filed an appeal from the decision of the Zoning Division of the Department of Licenses and Inspections with the Zoning Board of Adjustment."
The complaint continues that " in due course, on November 9, 1960, the appeal came up for public hearing before the Zoning Board of Adjustment, and plaintiff appeared at the appeal as the duly authorized agent of the party in interest in the appeal" ; that he " was forbidden and refused the right to appear and practice before the Zoning Board of Adjustment as a duly authorized agent of a party in interest."
Plaintiff averred in the complaint that on October 25, 1960, the zoning board adopted a new set of regulations governing practice before the board. Rule 8 of these regulations provided as follows:
Since plaintiff is not an attorney, he was not permitted to practice before the board, and he avers that " his right to appear before the Zoning Board of Adjustment... has been unlawfully denied; ... that he has been and is being unlawfully and unconstitutionally deprived of his right to appear and to practice before the Zoning Board of Adjustment of the City of Philadelphia as an agent of a party or parties in interest in matters pending before said Board; ... that Rule 8 of the Regulations of the Zoning Board of Adjustment (is) illegal, unlawful and unconstitutional" ; and that he has been unlawfully and unconstitutionally deprived of his means of livelihood, without due process of law. Plaintiff asks for a judgment " compelling the said Board to permit the plaintiff to appear before the said Board as authorized agent of a party... in matters before the Board; and declaring Rule 8 of the Regulations of the Zoning Board of Adjustment unlawful, in that it violates the provisions of Section 14-1802(2) (f) of the General Code of Ordinances of the City of Philadelphia and the Act of May 6, 1929, P. L. 1551 Section 8, 53 P. S. 14759..."
Plaintiff has suggested that his motion for summary judgment may be considered but that we cannot consider the preliminary objections, because a trial is necessary to the development of essential facts. We are of the opinion that the record is sufficient to sustain a final determination as to the validity of rule 8. Plaintiff, in his brief, filed in support of his motion for summary judgment, appended thereto a transcript of the notes of testimony of the proceeding before the zoning board and referred to same to show that " proof of plaintiff's status was offered the Board" and to show that rule 8 was the only reason that he was not allowed to appeal. It was agreed at the time of argument that the transcript is accurate. We are of the firm opinion that such transcript offered by plaintiff, in support of his motion, may also be considered by the court on the subject of defendants' demurrer. We shall file the transcript with the record.
A demurrer by way of preliminary objections under Pa. R. C. P. 1017 has replaced the statutory demurrer under the Practice Act of 1915 (Brown v. Phillips Co. 365 Pa. 155, 160 (1950) ); it is still the appropriate method for testing the sufficiency of an adverse party's pleading (Dutchess Underwear Corp. v. Swan Manufacturing Co., 75 D. & C. 185 (1950) ); a judgment should not be entered on a demurrer except in a case which is clear and free from doubt (Todd v. Skelly, 384 Pa. 423 (1956); Gardner v. Allegheny County, 382 Pa. 88 (1955); London v. Kingsley, 368 Pa. 109 (1951); Sun Ray Drug Co. v. Lawler, 366 Pa. 571 (1951); Hexter v. Haverford Township, 169 Pa.Super 168 (1951) ), and preliminary objections in the nature of a demurrer " admit every well-pleaded, material, relevant fact, and every inference fairly deducible from the facts pleaded" : Byers v. Ward, 368 Pa. 416, 420 (1951); Condel v. Savo, 350 Pa. 350 (1944); Blieden v. Toll, 139 Pa.Super 436 (1939); Ross Lumber Co. v. McMillan & Co., 69 D. & C. 47 (1949).
Plaintiff has contended that we cannot take judicial notice of the nature, functions and procedures of the board; that we must take testimony on such subjects. We do not agree. The court, to say the least, is quite familiar with zoning questions and need not receive testimonial advice on the subject. Our courts adjudicate many cases each year on appeal from the zoning board and are charged with the duty of knowing and enforcing the zoning law: English v. Zoning Board of Adjustment, 395 Pa. 118 (1959).
Plaintiff states as follows in his supplemental brief:
" There is nothing in the record to indicate... the type of matters heard by the Board, what examination or cross-examination, if any, is allowed; what facts are considered by the Board in formulating its decision; in short, there are no facts in the record at present which could allow the court to decide whether an appearance before the Zoning Board... (constitutes practice of law).
" As Mr. Justice Holmes once said, 'general propositions do not decide concrete cases.'" However, the point is that we are able to consider plaintiff's " concrete" case and need not concern ourselves only with " general propositions" as to the activities and considerations of the board. Plaintiff, on behalf of Olney Beverage Distributing Company, Inc., his client, prosecuted an appeal to the board in order to secure use and zoning permits for the " erection of a one-story addition as part of a beer distributor" in an area zoned " A" commercial and in the same block with " C" residential. The applicant sought extension of the use to the rear building line and a variance for the erection of a masonry building. It was stated at the hearing that the existing use was in violation of the zoning ordinance. At the time the matter came before the board for hearing, plaintiff sought " to present the facts" and sought " permission to appear on behalf of the owner of (the) property." He stated that he was not an attorney. After refusal of such permission, the case was presented by an attorney, and plaintiff testified as the sole witness for the applicant.
The Philadelphia zoning board was originally created by section 31 of the Philadelphia Zoning Ordinance of August 10, 1933, which was adopted pursuant to the Act of May 6, 1929, P. L. 1551, sec. 8, 53 PS § 14759. The zoning board of adjustment was continued in its same form by chapter V, sec. 5-1006 of the Philadelphia Home Rule Charter, which was adopted on April 17, 1951, pursuant to the Act of April 21, 1949, P. L. 665, and pursuant to the General Code of Ordinances which became effective on February 29, 1956.
Section 8-407 of the Philadelphia Home Rule Charter empowered every board, including thereby the zoning board, " ...to make such reasonable regulations as may be necessary and appropriate in the exercise of its powers and the performance of its duties under this charter or under any statute or ordinance..." : Section 1-102 (2) of the General Code of Ordinances. Rule 8 of the regulations and the other rules [1] were adopted by the board pursuant to this grant of authority. Plaintiff relies upon the provisions of the Act of May 26, 1929, which provided (section 8): " Upon the hearing (before the board) any party may appear in person or by agent...
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