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PENN WYNNE ET AL. v. LOWER MERION TOWNSHIP. (07/17/56)

July 17, 1956

PENN WYNNE ET AL., APPELLANTS,
v.
LOWER MERION TOWNSHIP.



Appeal, No. 74, Oct. T., 1956, from appeal of Court of Quarter Sessions of Montgomery County, April T., 1955, No. 30, in case of Penn Wynne, Overbrook Hills, Green Hill Farms Civic Association et al. v. Township of Lower Merion. Appeal quashed.

COUNSEL

Frank Kingston Smith, for appellants.

John E. Forsythe, Township Solicitor, with him Edmund B. Spaeth, Jr., and Wright, Mauck, Hawes & Spencer, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Carr, JJ.

Author: Ervin

[ 181 Pa. Super. Page 525]

OPINION BY ERVIN, J.

A complaint was filed in the lower court under § 1502 of The First Class Township Code, Act of June 24, 1931, P.L. 1206, as amended, 53 PS § 19092-1502, in which it was alleged that Ordinance No. 1111, adopted by the Board of Commissioners of Lower Merion Township, the appellee herein, on March 23,

[ 181 Pa. Super. Page 5261955]

, was invalid for a number of reasons therein set forth. Ordinance No. 1111 amends the Lower Merion Zoning Ordinance of 1927 by down-grading a certain tract from R 3 to R 7, thus permitting apartments where formerly only single-family residences could be erected. The township filed an answer to the complaint together with new matter. The appellants replied to the new matter and thereafter filed a motion for judgment on the pleadings. After argument the lower court entered judgment for the appellee and against the appellants as to all matters of procedure, the lower court holding that it could not consider anything but the legality of the ordinance. Appellants then appealed to this Court. The appellee moved to quash the appeal, contending that the appeal did not question the jurisdiction of the court below or the regularity of its proceedings. Section 1502, supra, under which this action was brought, provides that the order of the court of quarter sessions "shall be conclusive." The scope of our review is limited on certiorari to questions of jurisdiction and regularity of proceedings of the lower court. We have recently had occasion to consider this matter thoroughly and need not further discuss the subject in this opinion. See Plum Twp. Annexation Case, 178 Pa. Superior Ct. 376, 116 A.2d 260, Wynnewood Civic Assn. v. Lower Merion, 180 Pa. Superior Ct. 453, 119 A.2d 799. See also the recent opinion of the Supreme Court in Addison Case, 385 Pa. 48, 122 A.2d 272.

Appellee asks us to quash this appeal for the reason that the appellants have failed to question the jurisdiction of the lower court or the regularity of its proceedings. Appellants, on the other hand, argue that the appeal is addressed solely to the lack of regularity of the procedure of the lower court in granting a judgment on the pleadings in favor of the appellee where

[ 181 Pa. Super. Page 527]

    there is not a clear case free from doubt. They further state "We do not address our argument to the regularity of the proceedings before the Board of Commissioners of Lower Merion Township."

The real question before the lower court was whether Ordinance No. 1111 (an ordinance which amended the zoning ordinance by reclassifying a tract of land from R 3 to R 7, thus permitting erection of apartment houses where formerly only single-family residences were permitted) was a legal and valid ordinance. The lower court, in order to answer this question, had to determine whether a resolution (passed March 16, 1955, 10 to 4, all of the commissioners being present) which provided: "... resolved that the petition be granted and the Township Secretary was directed to have an ordinance prepared for presentation at the next meeting." or whether Ordinance No. 1111 (passed March 23, 1955, 11 to 2) providing for the change of classification from R 3 to R 7, prevailed, notwithstanding 2 of the 11 commissioners later changed their minds and at a meeting held April 20, 1955 endeavored to have their aye votes changed to nay votes. This question clearly had to do with the board's procedure and not the court's. Whether the lower court entered judgment for the appellee could only be determined by the way it answered this question. If it found, as it did, that the only way the zoning ordinance could be changed or amended was by the passage of another ordinance and not by a resolution, its right to enter judgment for the ...


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