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DIVELY v. TANNER (06/10/59)

June 10, 1959

DIVELY
v.
TANNER, APPELLANT.



Appeal, No. 1, April T., 1959, from decree of Court of Common Pleas of Allegheny County, Jan. T., 1957, No. 2114, in case of Martin N. Dively v. Herbert Tanner, plumbing inspector of Ohio Township. Decree affirmed.

COUNSEL

Thomas P. Geer, Solicitor for Ohio Township, with him Ryan, Geer and Bowser, for appellant.

Gilbert E. Morcroft, for appellee.

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

Author: Woodside

[ 189 Pa. Super. Page 636]

OPINION BY WOODSIDE, J.

This is an action in mandamus to compel a township building inspector to issue a plumbing permit. The Court of Common Pleas of Allegheny County directed the writ to issue and the inspector appealed to this Court.

The appeal should have been taken to the Supreme Court. Act of June 8, 1893, P.L. 345, § 29, 12 PS § 1975. When this was called to the attention of the township solicitor during the argument, counsel for both parties requested that we hear and dispose of the matter. They subsequently filed a written stipulation indicating their desire to have the matter disposed of under section 7 of the Act of June 24, 1895, P.L. 212, 17 PS § 181 and § 189, which provides that the Superior Court "shall have exclusive and final appellate jurisdiction of"... "Any case whatever, civil or criminal, at law or in equity or in the orphans' court, except felonious homicide, in which the parties or their attorneys file a stipulation in the proper court below at any stage of the proceedings agreeing that the case may be heard and decided by the superior court, although the case would otherwise have been appealable directly to the supreme court."

We are of the opinion that by virtue of the above statutory provision and the stipulation filed in this case, we have statutory permission to take jurisdiction.

[ 189 Pa. Super. Page 637]

The plaintiff, Martin N. Dively, acquired title to a tract of land in Ohio Township, Allegheny County, Pennsylvania, prior to 1948. Between November 1949 and April 30, 1950, the plaintiff erected upon his land a building containing toilets, showers, and laundry tubs to be used as a trailer camp wash room and toilet room. Sewers, septic tanks, all underground plumbing and all plumbing inside the building was completed except the finished plumbing fixtures. Electric installations were completed on the premises both inside the building and on numerous poles for attachment to trailers. At this time the township had no building code, no plumbing code and no zoning ordinance.

Thereafter, on August 7, 1950, the township passed a plumbing ordinance, and on September 19, 1950, it passed a zoning ordinance. The plaintiff's premises were zoned as "farm and woodland district."

In June 1951, the plaintiff, through his plumber, applied to the township plumbing inspector for permission to install commodes, tubs and sinks in the building, setting forth that the building was to be used in connection with a ...


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