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UNGER ET AL. v. HAMPTON TOWNSHIP (03/20/70)

decided: March 20, 1970.

UNGER ET AL., APPELLANTS,
v.
HAMPTON TOWNSHIP



Appeal from order of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1969, No. 3416, in case of Sarah Unger et al. v. Township of Hampton et al.

COUNSEL

Edward F. Urbanik, with him Royston, Robb, Leonard, Edgecombe, Miller & Shorall, for appellants.

Alvin E. Dillman, Jr., with him McGregor, Dillman, Sheerer & Schuchert, for appellees.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Roberts concurs.

Author: Pomeroy

[ 437 Pa. Page 400]

This action in mandamus was brought by appellants, Sarah Unger and the Unger Construction Company to compel appellees, the Township of Hampton, its manager and its zoning officer, to issue a building permit for the erection of a garden apartment complex on land in the Township owned by appellant Sarah Unger. The Township's zoning officer had refused to issue the permit because the land upon which appellants proposed to build their apartment complex was not zoned for commercial use. Without appealing this action of the zoning officer to the Board of Adjustment, appellants commenced this suit, alleging in their complaint that the Township zoning ordinance was invalid because of

[ 437 Pa. Page 401]

    procedural irregularities which had taken place at the time of its adoption. To this complaint the Township filed preliminary objections in the nature of a demurrer, which the court below sustained. Although the court granted appellants leave to amend their complaint, they brought the instant appeal*fn1 without making any attempt to do so.

Both parties acknowledge the well settled rule that "Mandamus is an extraordinary writ which lies to compel the performance of a ministerial act or mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and a want of any other appropriate and adequate remedy." Boslover A.A.B. Ass'n. v. Philadelphia Authority, 425 Pa. 535, 538, 229 A.2d 906 (1967); Travis v. Teter, 370 Pa. 326, 330, 87 A.2d 177 (1952). Both also agree that the preliminary objections in the nature of a demurrer

[ 437 Pa. Page 402]

    admitted all well-pleaded, material and relevant facts in the complaint. Lynch v. Gates, 433 Pa. 531, 534, 252 A.2d 633 (1969); Goldman v. McShain, 432 Pa. 61, 68, 247 A.2d 455 (1968); Hyam v. Upper Montgomery Joint Authority, 399 Pa. 446, 448-49, 160 A.2d 539 (1960).

Appellants contend that the facts pleaded in the complaint demonstrate that the Hampton Township zoning ordinance is invalid and that they are, therefore, entitled to use their property free of its restrictions.*fn2 The error of the court below, in appellants' view, was its failure to enforce this right by compelling the issuance of a building permit. They analogize this situation to that in Coyne v. Prichard, 272 Pa. 424, 116 Atl. 315 (1922) where the Court held that a writ of mandamus should have been granted to compel the issuance of a building permit where the city council had not yet promulgated any land use regulations, the proposed building complied with all other building regulations, and the only objection to the building was its proposed location. They also contend that the court below erred in concluding that another appropriate and adequate remedy was available.

Appellees' position, on the other hand, is that where, as here, the right asserted by appellants (i.e., the right to a building permit) depends upon first establishing the invalidity of a township ordinance under which the permit was properly refused, the right to this permit is not sufficiently clear to constitute the basis for a writ of ...


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