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M. & E. ENTERPRISES v. TOWNSHIP FRANKLIN ZONING HEARING BOARD AND TOWNSHIP FRANKLIN AND LOUIS PERRY (03/10/75)

decided: March 10, 1975.

M. & E. ENTERPRISES, INC.
v.
TOWNSHIP OF FRANKLIN ZONING HEARING BOARD AND TOWNSHIP OF FRANKLIN AND LOUIS PERRY, JR., AND ELLA MAE PERRY, HIS WIFE, AND PAUL M. THOMAS AND SUSAN THOMAS. M. & E. ENTERPRISES, INC., APPELLANT



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of M. & E. Enterprises, Inc. v. Township of Franklin Zoning Hearing Board and Township of Franklin, Intervenor, and Louis Perry, Jr. and Ella Mae Perry, his wife, and Paul M. Thomas and Susan Thomas, his wife, Additional Intervenors, No. 566 of 1974.

COUNSEL

Thomas E. Rodgers, with him R. H. Buchman, for appellant.

Henry A. Hudson, Jr., with him Hudson and Harr, for appellee.

James C. Tallant, with him Jones, Tallant and Bailey, for intervening appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Memorandum Opinion and Order by Judge Kramer.

Author: Kramer

[ 17 Pa. Commw. Page 587]

This opinion is restricted solely to a motion to quash. It involves an appeal filed by M. & E. Enterprises, Inc. (M. & E.) from an order, dated and filed October 3, 1974, by a single judge of the Court of Common Pleas of Westmoreland County, which affirmed an adjudication of the Franklin Township Zoning Hearing Board (Township). There were no post-trial exceptions or other pleadings filed from the order of the court below. On October 21, 1974, M. & E. filed an appeal with this Court. The Township filed a motion to quash based upon its argument that the order of the lower court was not a final order, and that, therefore, the appeal by M. & E. was premature. By order of this Court, dated November 29, 1974, the motion to quash was submitted for determination without argument upon the filing of briefs.

[ 17 Pa. Commw. Page 588]

The Township contends that a final order of the Court of Common Pleas would have to be an order of the court en banc after exceptions to the decision of the hearing judge have been filed and considered by the court en banc. The Township notes that the local rules of court provide that all proceedings shall conform, as nearly as possible to the Rules of Civil Procedure relating to assumpsit, which in Pa. R.C.P. No. 1038 provide for the filing of exceptions within 20 days after notice of the filing of the decision, or absent such exceptions, the entry of final judgment by the prothonotary. In the instant case no exceptions were filed and judgment was not entered. Therefore, the Township argues that the order involved is not final. In support of its argument the Township points to the decisions of this Court in Kane v. Allegheny County Retirement Board, 7 Pa. Commonwealth Ct. 262, 299 A.2d 686 (1973); McKay v. North Huntingdon Township Page 588} Board of Adjustment, 2 Pa. Commonwealth Ct. 609, 279 A.2d 376 (1971); and Cameron v. Board of Adjustment of the City of Greensburg, 1 Pa. Commonwealth Ct. 210, 274 A.2d 258 (1971).

Kane, supra, is not applicable to the instant case because it involved an action in mandamus to compel the Retirement Board of Allegheny County (Board) to pay retirement benefits to certain individuals. In Kane, the lower court ordered the Board to pay said retirement benefits, and we stated that the Board should have filed a praecipe for the entry of final judgment before filing its appeal. Pa. R.C.P. Nos. 1091-1099 govern procedure in mandamus actions and clearly provide that the rules relating to assumpsit (including Pa. R.C.P. Nos. 1038 and 1039) are applicable.

Cameron, supra, and McKay, supra, both dealt with the Pennsylvania Municipalities Planning Code (Code),*fn1 before its recent amendment*fn2 and, therefore, the specific statutory interpretation involved in those cases is not relevant to the instant case. Nonetheless, we believe the

[ 17 Pa. Commw. Page 589]

    general principles set forth in McKay and ...


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