Opinion by
This is an appeal by Anthony Oteri from the disposition by the court below of a bill in equity brought against him by Maria Bartone.
On May 10, 1947 appellant, the owner of premises located at 1632 South Broad Street, Philadelphia, the premises adjoining which are owned and occupied by Mrs. Bartone, applied to the Bureau of Building Inspection and to the Bureau of Engineering, Surveys and Zoning for permits authorizing the alteration of the first floor of his premises and the construction of a one-story rear addition thereto for use as a bakery. The application was refused as being in violation of the city’s zoning ordinance of August 10, 1933. Oteri appealed to the Zoning Board of Adjustment for a certificate of variance which was granted on December 8, 1947. He thereupon proceeded with the alterations and completed them on or about September 1, 1948. The brick extension permitted by the variance was 12 *559 feet 4 indies in depth and 14 feet 6 inches in width. However, the actual construction extended from 2% to 3 feet beyond the allowed depth limit, and a small brick lavatory structure, 4 feet by 5 feet, extended beyond this. Oteri claimed that the extension of the first floor beyond the allowed limit was an honest error on the part of the bricklayer. However this may be, upon appeal to the Zoning Board of Adjustment from a refusal of the Bureau of Engineering, Surveys and Zoning to approve the expanded construction, the Board first refused, but then upon reconsideration, on May 21, 1949 authorized the issuance of permits. The Board found that “an unnecessary hardship would be imposed upon the Owner if the strict requirements of the Ordinance as to rear yard and open area are enforced.”, and “In the light of the necessity of the bakery’s having, for health purposes, the additional space to serve the public, the Board finds that it is for the purpose of promoting the health of the customers of the bakery, which already legally existed on the premises, that this small additional space be made available for promoting such purpose.”.
On July 29, 1949, more than two months thereafter, Mrs. Bartone filed her bill in equity praying that the Board’s order be declared void and the defendant (here appellant) be directed to remove such portion of the extension or addition to his premises as did not conform with the original variance granted him. On September 8, 1949 a decree pro confesso was entered for want of an appearance and want of an answer. On October 14, 1949 Oteri obtained a rule upon Mrs. Bar-tone to show cause why the decree pro confesso should not be stricken off, with leave to Oteri to file preliminary objections and in the alternative to file an affidavit of defense. Pending disposition of this rule, the City of Philadelphia filed its “Petition to Intervene *560 and Be Let Into a Defense”, and Oteri filed a proposed answer. 1 Thereupon a stipulation was entered into by Mrs. Bartone, Oteri and the City of Philadelphia under the terms of which the lower court was requested to issue certiorari to the Zoning Board, directing the latter to certify the entire record to the court. The stipulation also provided that the entire record in the equity proceeding, including Oteri’s proposed answer to the bill, be considered by the court in its determination of the “appeal”; that the bill in equity be considered in lieu of a petition for writ of certiorari and the proposed answer in lieu of a petition for leave to intervene; and that the requirement of the Act of May 6, 1929, P. L. 1551, Section 8, 53 PS §3829, that an appeal from the decision of the Zoning Board must be presented to the court within thirty days, be waived.
The court below considering the matter as if an appeal had been duly taken under the above section of the Act of 1929, reversed the decision of the Zoning Board and directed appellant “to tear down promptly that portion of his building constructed beyond his plan of construction as was approved by the Department of Building Inspectors.”. On April 10, 1951 the court entered the following final order: “The appeal is sustained and the decision of the Zoning Board of Adjustment is reversed.”.
The action of the court below must be reversed. Admittedly no appeal from the decision of the Zoning Board was taken to the court of common pleas within the time specifically prescribed in the Act of 1929, su
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pra, and the present appeal is from the order entered on the proceeding which originated in equity. Since the statutory procedure for appeal from a decision of the Zoning Board was not followed, the court was without jurisdiction to entertain the bill in equity. Mrs. Bartone, complainant therein, could not resort to a bill in equity in circumvention of the remedy afforded by the statute. We repeat what we said in
Derry Township School District v. Barnett Coal Company et al.,
It is almost unnecessary to state that the parties could not by stipulation convert a proceeding over which the court had no jurisdiction into another proceeding and thereby confer jurisdiction by consent. It
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is a universal rule of law that parties cannot by consent or waiver give a court jurisdiction of subject matter of which it would otherwise not have jurisdiction: 14 Am. Jur., Courts, §184;
Patterson’s Estate,
The order of the court below is set aside, the decree pro eonfesso is vacated and the bill in equity dismissed for want of jurisdiction at the cost of appellee.
Notes
In her bill Mrs. Burtone alleged she had no knowledge of the hearing before the Board at which the expanded construction was approved and that the Board’s action was not supported by the law and the facts. In his answer Oteri averred that notice was properly given and that under the circumstances the Board was justified in the action taken.