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decided: June 27, 1969.


Appeals from order of Court of Quarter Sessions of Montgomery County, Nov. T., 1967, No. 48, in case of John J. McCarthy et al. v. Lower Gwynedd Township.


Donald A. Gallager, with him Waters, Fleer, Cooper & Gallager, for company, appellant.

John P. Knox, with him Curtis Wright, and Foulke, Knight, Stefan & Timoney, for township, appellant.

John Justin McCarthy, for appellees.

Bell, C. J., Jones, Cohen, Eagen O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Concurring Opinion by Mr. Justice Roberts. Mr. Chief Justice Bell, Mr. Justice Jones and Mr. Justice Cohen join in this concurring opinion.

Author: O'brien

[ 435 Pa. Page 77]

This case is quite similar to Coston v. Upper Merion Township, 435 Pa. 67, 255 A.2d 565 (1969), decided this date. On December 19, 1967, Lower Gwynedd Township, a Second Class Township, amended its zoning ordinance. The property of Conestoga Building Co., an intervenor below, was rezoned from A-residential, the highest residential classification, to A-1 Garden Apartments. Within thirty days after the effective date of the amendatory ordinance, the appellees, residents of the township, brought a complaint pursuant to § 702 of the Second Class Township Code, Act of May 1, 1933, P. L. 103, art. VII, § 702, as amended, 53 P.S. § 65741, allegedly challenging the regularity of the ordinance. On May 22, 1968, the court held the ordinance to be invalid. Its reason was that the motivation of the Township Supervisors in adopting the ordinance was improper. The Supervisors had been engaged in a controversy before the Public Utilities Commission and the courts involving a proposed site for a water tower in a high classification residential district. When the Supervisors lost, they were apparently in dire straits as to a site. They then worked out an arrangement with the intervenor whereby the township would receive from the intervenor an acre of ground upon which the water tower could be erected, and in return the intervenor would get a favorable zoning classification upon the remaining 13 1/2 acres of the tract.

On June 17, 1968, within thirty days of the decision, the appellants, both the Township and the intervenor, took an appeal to the Superior Court, which held that it was without jurisdiction and certified the case to this Court on August 22, 1968. In the meantime, on July 23, 1968, the Superior Court handed down its decision in Coston v. Upper Merion Township, 212 Superior Court 546, 244 A.2d 442

[ 435 Pa. Page 78]

(1968), certifying that case to this Court. As a result, on August 20, 1968, appellants filed a petition for allowance of appeal under Supreme Court Rule 68 1/2, nunc pro tunc.

For the same reasons as are stated in Coston, 435 Pa. 67, 255 A.2d 565 (1969), we hold that the Superior Court was without jurisdiction and also without power to certify.

However, we also noted in Coston that since the erroneous appeal to the Superior Court was filed within the thirty days allowed for petitioner under Rule 68 1/2, the appellee was not unduly prejudiced by the mistake, and we would treat the papers as a petition under Rule 68 1/2 nunc pro tunc. Here, in addition, appellants actually filed such a petition. And here the petition must be granted and the order of the Court of Quarter Sessions vacated. The jurisdiction of the Court of Quarter Sessions is limited to procedural questions, Coston, supra, and cases cited therein, and it exceeded that jurisdiction when it held the ordinance invalid because of the motives of the Supervisors.*fn1 The characterization of the improper motive as procedural by the Court of Quarter Sessions certainly does not make it procedural. Clearly it is substantive. This is evident from the language of the court's opinion: "It is this Court's opinion that the supervisors exceeded their permissible area of discretion, and abandoned the comprehensive plan upon a completely extraneous consideration which bore no relationship to the health, safety, morals or general welfare."

[ 435 Pa. Page 79]

Since the Court of Quarter Sessions was without jurisdiction, its order cannot stand. The certification of the Superior Court is refused, the petition nunc pro tunc under Rule 68 1/2 is granted, and the order is vacated, without prejudice to appellees to pursue their remedy in the proper forum.


Certification refused, petition under Rule 68 1/2 granted, and order vacated.

Concurring Opinion by Mr. Justice Roberts:

I believe the certification in this case was entirely proper; on this point I differ with the majority. The majority relies on the language " appealable directly " in the Act of June 24, 1895, P. L. 212, § 9, 17 P.S. § 196, to preclude certification in a case where this Court would review on the basis of Supreme Court Rule 68 1/2.*fn* However, this language should in no way restrict the Superior Court from ever certifying a case to this Court which "is erroneously taken to the superior court," so long as the next point of adjudication in such cases is, in fact, the Supreme Court. The manner in which this Court handles such cases, whether as an appeal of right or a 68 1/2, should in no way limit the authority of the Superior Court to certify under the statute. But since the majority treats this appeal in the same fashion as though properly certified to us by the Superior Court, albeit the majority does so by the fictional route of choosing to view it as a petition under Rule 68 1/2, I couch this opinion in the form of a concurrence, rather than a dissent.

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