Strouse v. Ellwood City Borough

51 Pa. D. & C.2d 67, 1970 Pa. Dist. & Cnty. Dec. LEXIS 276
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedJune 10, 1970
Docketno. 137
StatusPublished

This text of 51 Pa. D. & C.2d 67 (Strouse v. Ellwood City Borough) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Strouse v. Ellwood City Borough, 51 Pa. D. & C.2d 67, 1970 Pa. Dist. & Cnty. Dec. LEXIS 276 (Pa. Super. Ct. 1970).

Opinion

LYON, J.,

This isan appeal testing the legality of the passage by the Council of the Borough of Ellwood City of five ordinances, designed to control building construction and housing in that municipality. The appeal was brought under and in conformance with section 1010 of The Borough Code of February 1, 1966, P. L. (1965) 1656, as amended, [68]*6853 PS §46010. At a hearing before the court held on this appeal, the issues were defined, stipulations made and some testimony taken. It was stipulated by counsel for both sides that no public hearing was held prior to the passage of the Building Code Ordinance No. 1571.

I.

The first issue to be discussed is whether or not appellants, all residents of the Borough of Ellwood City, have standing to appeal and challenge each of the five ordinances which collectively are known as the “workable program ordinances.” The appeal is taken under The Borough Code, sec. 1010, 53 PS 46010, which, in part, reads as follows:

“Complaint as to the legality of any ordinance or resolution may be made to the court of quarter sessions, upon entering into a recognizance with sufficient security to prosecute the same with effect and for the payment of costs, by any person aggrieved, within thirty days after the enactment of any ordinance or the adoption of any resolution, and the determination and order of the court thereon shall be conclusive . . .” (Italics supplied.)

The question immediately directs itself to whether or not appellants herein are such persons aggrieved to enable them to have standing to appeal and challenge the workable program ordinances.

At the outset, a distinction must be made with respect to a person being aggrieved in order to challenge a zoning ordinance being enforced against him, and his being aggrieved in order to attack the regularity of procedures in the enactment of an ordinance. The issue in question concerns itself with the latter. The basic contested issue in the present case centers around procedural propriety, and the conclusion of whether or not plaintiffs herein are aggrieved must be determined in this context.

[69]*69The cases cited by counsel for the Borough of Ell-wood City are not material or relevant in deciding whether or not plaintiffs are aggrieved persons who have standing to question procedural regularity of ordinances. These cases are accurate authority for the other proposition which must be distinguished, namely, that a person must be specially aggrieved in order to challenge the validity of a zoning ordinance when it is being enforced.

For example, the first case cited by the Borough of Ellwood City is Martin v. City of Chester, 44 Del. Co. 1 (1956), which supports the position that there is no common-law right giving citizens and property owners the right to attack an ordinance by taking an appeal to a court of record, and such right of appeal must, therefore, be created by statute. In this case, the court pointed out the right of appeal must be created by statute. The court failed to find any legislative authority in The Third Class City Code of June 23, 1931, P. L. 932, which provided an avenue of appeal to the court of common pleas where it could entertain an action seeking to have an ordinance declared void because of alleged procedural defects in its passage and adoption. Thus, the court concluded there is no common-law right of appeal with respect to The Third Class City Code. In the present case, the issue involves The Borough Code which, in fact, does provide an avenue of appeal to the court of quarter sessions to question the legality of an ordinance. See 53 PS §46010.

The case of Kistler v. Swarthmore Borough, 134 Pa. Superior Ct. 287, 4 A.2d 244 (1939), cited by the Borough of Ellwood City, likewise is not applicable in support of the position that plaintiffs in the issue at bar are not aggrieved. In Kistler, an ordinance was challenged which prohibited the building of motion picture theaters in the Borough of Swarthmore. A [70]*70citizen who desired to build a motion picture theater attacked the ordinance. His appeal was denied by a court which noted that the land he owned had been zoned more than nine years before the passage of this ordinance as being unavailable for the building of motion picture theaters. The court also stated that to ascertain whether petitioner is legally aggrieved, it must determine the effect of this ordinance on petitioner’s property. The distinction to be made as previously mentioned is that the court in Kistler is defining “aggrieved” in terms of a zoning ordinance being confiscatory to plaintiff. It is not analyzing the meaning of “aggrieved” in terms of who is entitled to attack the validity of an ordinance based upon defects in the procedural requisites of enactment and adoption which is the pertinent issue in the present litigation.

Also relied upon by counsel for the Borough of Ellwood City is White v. Philadelphia, 408 Pa. 397, 184 A.2d 266 (1962), which fails to substantiate his position that appellants herein are not aggrieved. In the White case, a housing project financed solely by funds of the Federal government sought to purchase a building or structure, rehabilitate it and utilize it as a low rent housing unit. This was challenged in that this action is outside the scope of the Pennsylvania Housing Authorities Law of May 28, 1937, P. L. 955. White’s sole objection was that this housing project would bring objectionable persons into the neighborhood. The court held that White had no standing to attack the ordinance which authorized the housing authority’s action. The decision turned on the point that even though White is a taxpayer of the city and the Federal government, this does not vest in him the standing to challenge an ordinance and that he must be adversely or directly affected. Again, [71]*71the distinction is made that White is not challenging the procedures of enactment, but he challenged the constitutionality of the ordinance, whereupon it is agreed that he must be specially affected by the ordinance. However, in the present case wherein the procedural regularities are questioned, one need not be aggrieved in the same sense as one attacking the effect of an ordinance being confiscatory as to his property.

The logical reason for the procedural requirements regarding the enactment of an ordinance in Pennsylvania is to advise the citizens of the content and purpose of the legislation. When one challenges the procedural requirements, he is not directly nor adversely affected in terms of suffering an undue hardship at this point in time. He merely initiates a complaint that if the ordinance is enacted, it must comply with the applicable procedural rules of law to be properly adopted. It was, in fact, ruled at the hearing held on this appeal that the alleged substantive violations concerning the validity of the “workable program ordinances” could not be raised or considered because this was outside the jurisdiction of the court of quarter sessions. See Palmeri v. Penn Hills Township, 428 Pa. 464, 239 A.2d 204 (1968). Generally, the meaning of “aggrieved” in the cases cited by the Borough of Ellwood City was in the context of an attack into the substantive provisions of an ordinance or of its enforcement against a person in an alleged violation of due process.

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Related

White v. Philadelphia
184 A.2d 266 (Supreme Court of Pennsylvania, 1962)
Kelly v. Philadelphia
115 A.2d 238 (Supreme Court of Pennsylvania, 1955)
Commonwealth v. Schaeffer
98 Pa. Super. 265 (Superior Court of Pennsylvania, 1929)
Kistler v. Swarthmore Borough
4 A.2d 244 (Superior Court of Pennsylvania, 1938)
Junge's Appeal. (No. 2.)
89 Pa. Super. 548 (Superior Court of Pennsylvania, 1926)
Murray v. Philadelphia
71 A.2d 280 (Supreme Court of Pennsylvania, 1950)
Saulsbury v. Bethlehem Steel Co.
196 A.2d 664 (Supreme Court of Pennsylvania, 1964)
Palmeri v. Penn Hills Township
239 A.2d 204 (Supreme Court of Pennsylvania, 1968)

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Bluebook (online)
51 Pa. D. & C.2d 67, 1970 Pa. Dist. & Cnty. Dec. LEXIS 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strouse-v-ellwood-city-borough-pactcompllawren-1970.