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COSTON v. UPPER MERION TOWNSHIP (ET AL. (06/27/69)

decided: June 27, 1969.

COSTON
v.
UPPER MERION TOWNSHIP (ET AL., APPELLANT)



Appeal from order of Court of Quarter Sessions of Montgomery County, Nov. T., 1965, No. 12, in case of Donald V. Coston et al. v. Upper Merion Township.

COUNSEL

David Berger, with him Edward Fackenthal, Knox Henderson, and Cohen, Shapiro, Berger, Polisher & Cohen, and Henderson, Wetherill & O'Hey, and Silver & Barsky, for intervenor, appellant.

Richard C. Sorlien, with him Philip D. Weiss, for plaintiff, appellees.

James E. Meneses, for township, appellee.

Bell, C. J., Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell, Mr. Justice Jones and Mr. Justice Cohen concur in the result. Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: O'brien

[ 435 Pa. Page 70]

On October 11, 1965, Upper Merion Township, a Second Class Township, amended its zoning ordinances. The property of the appellant, Tri-Kell, Inc., an intervenor below, was rezoned from "R-2 Residential" (permitting only individual residences) to "HR Residential" (permitting apartments as well). Within thirty days after the effective date of the ordinance in question, the appellees, eight residents of the Township, alleging that they were aggrieved by the failure of the Supervisors to follow statutorily prescribed procedures, brought a complaint against the Township, questioning the legality of the ordinance, in the Court of Quarter Sessions of Montgomery County. That court, in its decree nisi of December 21, 1966, sustained two of appellees' allegations and declared the rezoning ordinance void. The court held that the ordinance was invalid because (a) no valid public hearing was held, the hearing of August 10, 1964, fourteen months before the adoption of the ordinance, being too remote in point of time, and (b) improper, extraneous and illegal considerations induced the Board of Supervisors to enact the ordinance. The intervenor, the property owner, took exceptions to the decree nisi, which exceptions were dismissed on December 13, 1967, and a final order entered. The intervenor then appealed to the Superior Court. That Court held that it had no jurisdiction, and certified the matter to this Court.

Although we agree with the Superior Court that it is without jurisdiction in this matter, we nonetheless believe that the certification was improper. We shall deal first with the question of jurisdiction in the Superior Court. The Superior Court recognized that under the Act of August 14, 1963, P. L. 819, § 1, 17 P.S. §§ 181, 182, it has exclusive jurisdiction of all appeals from courts of quarter sessions, except as otherwise provided in the Act. However, it held that

[ 435 Pa. Page 71]

    under § 2 of the Act of 1963, 17 P.S. § 191.4, the Legislature had indeed provided otherwise. That section states that the Superior Court shall have no jurisdiction in "appeals from orders of the courts of common pleas and courts of quarter sessions of the peace involving or arising out of acts, ordinances, regulations or orders relating to zoning." The argument has been made that clause seven quoted above is not intended to deprive the Superior Court of jurisdiction where only the procedural regularity of the enactment is involved, even if the enactment does involve zoning. As to the procedure of its enactment, the argument goes, a zoning ordinance is no different from any other ordinance, and the Superior Court should retain jurisdiction. Reliance is placed upon the recent case of Commonwealth ex rel. Ransom Township v. Mascheska, 429 Pa. 168, 239 A.2d 386 (1968), where we held the Superior Court had jurisdiction in an appeal from the court of common pleas which had affirmed the imposition of a fine, assessed in a summary proceeding by a justice of the peace, for violation of a zoning ordinance. There the order involved was, in the broadest sense, an ordinance relating to zoning; yet we held that the Superior Court had jurisdiction.

Ransom Township is distinguishable from the instant case, however. The relationship between the zoning ordinance and the subject of that case, a fine, was quite attenuated. The action there was quasicriminal in nature. Moreover, in that case the validity of the ordinance itself was not in issue, as it is here. It is irrelevant that it is the procedural validity rather than the substantive validity that is questioned. Clause seven does not merely speak of appeals involving or arising out of acts, ordinances, regulations or orders relating to zoning. It refers to appeals from "orders of the courts of common pleas and courts of quarter sessions of the peace involving or arising out of acts,

[ 435 Pa. Page 72]

    ordinances, regulations, or orders relating to zoning." (Emphasis added). Under § 702 of the Second Class Township Code, Act of May, 1933, P. L. 103, art. VII, § 702, as amended, 53 P.S. § 65741, the only zoning matters that can be considered by a court of quarter sessions are those that concern procedure. Weaver v. East Brandywine Township, 15 Chester 221 (1967); Davison v. Whitemarsh Township, 31 Pa. D. & C. 2d 267 (1963); Accord, Cheltenham Township Appeal, 413 Pa. 379, 196 A.2d 363 (1964), construing virtually the identical provision in the First Class Township Code. Thus, if the words "and courts of quarter sessions of the peace" in clause seven are to have any ...


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