Appeal from the Order of the Court of Common Pleas of Montgomery County, in case of Glasgow, Inc. v. Carl Strand, Zoning Officer and Building Inspector of Plymouth Township, Montgomery County, Civil Division, No. 71-6129.
Paul W. Callahan, with him Fox, Differ, Mazer & Callahan, for appellant.
John G. Kaufman, with him Bean, DeAngelis, Kaufman & Giangiulio, for appellee.
Judges Crumlish, Jr., Kramer and Rogers, sitting as a panel of three. Opinion by Judge Crumlish, Jr.
In June of 1971, acting upon a complaint in mandamus filed by the appellee, Glasgow, Inc., the Court of Common Pleas of Montgomery County issued an order directing appellant, the Zoning Officer and Building Inspector of Plymouth Township to grant appellee a building permit in accordance with an application filed with the township in March of 1971. The appellant appealed from the order of the lower court to this Court; whereupon appellee filed a motion to quash the
appeal on the grounds that exceptions to the ruling of the lower court had not been filed and that the order of the lower court was interlocutory and unappealable. Argument was limited to the narrow issues presented by the motion to quash. We hold that the motion to quash the appeal is denied.
Initially we will consider the jurisdictional propriety of this Court. The Act of June 8, 1893, P.L. 345, 12 P.S. § 1975, specifically authorizes appeal from any writ of mandamus issued by any court of common pleas. This authorization of appeals in mandamus proceedings was recognized by the Supreme Court of Pennsylvania in Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970).
Although appeals were authorized by statute to the Supreme Court, jurisdiction in such matters has since been more specifically vested in this situation in the Commonwealth Court by the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, Art. IV, Section 402, 17 P.S. 211.402(4). See also, Ribblet v. Westrick, 341 Pa. 484, 19 A.2d 394 (1941); Bono v. Trommes, 201 Pa. Superior Ct. 449, 193 A.2d 762 (1963).
Appellee contends that, according to Rules 1099 and 1038 of the Pennsylvania Rules of Civil Procedure, 12 P.S. App. R.C.P. 1099 and 1038, appellant was required to file exceptions to the ruling of the lower court. Rule 1099 provides that "actions in mandamus by a Judge sitting without a jury shall be in accordance with Assumpsit Rule 1038." Rule 1038 provides that any party to the decision may file exceptions to the decision within twenty days and further that "matters not covered by exceptions are deemed waived . . . ."
We hold that exceptions need not be filed where, as here, it is the ultimate decision to grant the mandamus that is being ...