Appeal from order of Court of Common Pleas of Montgomery County, No. 69-3039, in case of Philadelphia Presbytery Homes, Inc. v. Board of Commissioners of Abington Township.
Daniel B. Michie, Jr., with him Fell, Spalding, Goff & Rubin, for appellant.
Gilbert P. High, with him High, Swartz, Roberts & Seidel, for appellee.
Donald A. Gallager, with him Waters, Fleer, Cooper & Gallager, for intervenors.
Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Justice Cohen and Mr. Justice Roberts concur in the result. Mr. Chief Justice Bell took no part in the consideration or decision of this case.
On May 22, 1968, appellee, Philadelphia Presbytery Homes, Inc., filed an application with Abington Township, in accordance with the provisions of the Abington Township Zoning Ordinance, to have the zoning classification of a fourteen acre tract of land in the Township owned by it changed from "V" Residential to "AO" Apartment Office, thereby permitting appellee to erect upon the tract a facility for the housing of
elderly and retired people. A public hearing was held upon this application on September 19, 1968, at which Mr. and Mrs. William C. Adamson, owners of the property abutting the tract in question, entered a protest against the proposed change of zoning. Thereafter, on January 9, 1969, appellant Board of Commissioners held another public meeting at which a vote was taken on appellee's application. At that meeting only fourteen of fifteen authorized commissioners were in office, one having died and no replacement having been appointed. When the roll was called, nine commissioners voted for the amendment and five voted against it. The Township Solicitor ruled that this vote fell short of the requisite margin for adoption in light of the provisions of Section 1905 of the Township Zoning Ordinance, and that the amendment had not been adopted. Section 1905 provides that if the owners of twenty percent of the land immediately abutting any side of an area to be affected by a proposed zoning amendment protest its adoption, affirmative votes of three-fourths of the Board of Commissioners (as distinguished from a simple majority) are required for its adoption.*fn1
Following the Solicitor's adverse ruling, appellee brought this action in mandamus asserting that the zoning amendment had been properly adopted and seeking an order compelling the Board of Commissioners to enter the amendment in the Ordinance Book and advertise it as required by The First Class Township Code. Act of June 24, 1931, P. L. 1206, Section 1502, as amended, 53 P.S. § 56502. Upon the completion of the pleadings (which consisted of complaint, answer and new matter, and reply), appellee moved for judgment thereon. The court below concluded that the protest provision was invalid because it did not comport
with the applicable enabling statute. It accordingly entered judgment for appellee, and this appeal by the Township followed.
Although not considered by the parties in their briefs or arguments, the threshold question to be resolved is whether a writ of mandamus is an available remedy to appellee. In Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970), we reaffirmed the well settled principle that, "[m]andamus 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." 437 Pa. at 401. While it is true that the publication of an ordinance duly adopted by the Township is a mandatory, ministerial duty under Section 1502 of The First Class Township Code, supra, the real issue presented in the present case is whether the amendment to the zoning ordinance was or was not adopted by the vote on January 9, 1969. The parties do not question the correctness of the Solicitor's application of the ...