Walker v. ZONING BD. OF ADJ.(et Al.)

Concurring Opinion by

Mr. Justice Bell:

I concur in the opinion of the Court. Because zoning problems have become so numerous and important, I believe our Court should avail itself of this opportunity to eliminate the confusion created by two conflicting lines of decisions in zoning cases, particularly in applications for a variance, viz., whether, after testimony has been taken in the court of Common Pleas, the test in that Court should be (1) “a manifest abuse of discretion” by the Board of Adjustment, or (2) “such decision as may appear to [that] Court to be just and proper,” — in other words, a decision on the merits.

Where no testimony is taken in the Court of Common Pleas the test for that Court is “whether the Board of Adjustment was guilty of a manifest abuse of discretion or an error of law” — if not, its order must be affirmed by the Court of Common Pleas: Devereux Foundation, Inc., Zoning Case, 351 Pa. 478 , 41 A. 2d 744 ; Perelman v. Yeadon Borough Board of Adjustment, 144 Pa. Superior Ct. 5 , 18 A. 2d 438 .

Where, however, any testimony is taken in the Court of Common Pleas our cases are in conflict as to the proper test or yardstick.

With respect to cities of the first class and cities of the second class, the statute or ordinance permits the Court of Common Pleas to take testimony and to reverse or affirm, wholly or partly, or modify, the order of the Board of Adjustment. In the earlier cases, even where additional testimony was taken in the Court of Common Pleas, this Court has said that the lower Court should reverse only for a manifest abuse of discretion or an error of law. Cf. Jennings’ Appeal, 330 Pa. 154 , 198 A. 621 ; Liggett’s Petition, 291 Pa. 109 , *235 139 A. 619 ; Berman v. Exley, 355 Pa. 415 , 50 A. 2d 199 .

However, the statute or the ordinance relating to cities of the third class, as well as to townships, and boroughs, provides that the Court of Common Pleas may take testimony and “render such decision as to it may appear just and proper.” In cases arising under these Statutes we have held that whenever any testimony is taken in the lower Court, that Court has the power to decide the ease on the merits: Dooling’s Windy Hill v. Springfield Township, 371 Pa. 290 , 89 A. 2d 505 ; Bolling Green Golf Club Case, 374 Pa. 450 , 97 A. 2d 523 ; Lord Appeal, 368 Pa. 121 , 81 A. 2d 533 . In recent cases we felt this rule should prevail in all appeals to the Court of Common Pleas whenever testimony is taken in that Court: Pincus v. Power, 376 Pa. 175 , 101 A. 2d 914 ; Silverco, Inc. v. Zoning Board of Adjustment, 379 Pa. 497 , 109 A. 2d 147 . The reasons are obvious — there is no real difference in the various Statutes, and the Board of Adjustment cannot be guilty of an abuse of discretion if it did not have the advantage of hearing the testimony which was presented in the Common Pleas Court and which might have caused it to render an entirely different decision. For these reasons I am convinced that the correct test is and should be the one set forth in the most recent cases, viz.: Dooling’s Windy Hill v. Springfield Township, Rolling Green Golf Club Case, Lord Appeal, Pincus v. Power and Silverco, Inc. v. Zoning Board of Adjustment, supra.

Unfortunately in the recent case of Catholic Cemeteries Association, * 379 Pa. 516 , 109 A. 2d 537 , the majority opinion relied upon Reininger Zoning Case, 362 Pa. 116 , 68 A. 2d 225 , and adopted “the manifest abuse of discretion” test laid down therein, without any notice of or reference to (1) the more recent deci *236 sions of this Coiirt which, as above stated, lay down a different rule, or (2) the fact that the law for cities of the third class (i.e. Reining er) had been changed by Statute since the Reining er decision to provide “as to it [the Court of Common Pleas] may appear just and proper.”

In my judgment whenever testimony is taken in the Court of Common Pleas it has the power to decide the case on the merits. Whether this is or is not the correct test is important, but in view of the multitude of current zoning problems it is even more important to the Bench, the Bar, zoning boards and litigants that the present confusion be eliminated and the law be clarified and settled.

Mr. Justice Musmanno joins in this Concurring Opinion.

A case in which I did not sit.