Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Suburban Group, Inc., a Pennsylvania corporation, v. Robert D. Gittings, Code Enforcement Officer of the Township of Franklin, the Township of Franklin, a Pennsylvania municipality, and the Board of Supervisors of the Township of Franklin, No. 794 October Term, 1973.
Henry A. Hudson, Jr., with him Hudson and Harr, for appellants.
B. Earnest Long, with him Robinson, Fisher, Long & Rigone, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers. Judge Kramer concurs in the result only.
[ 22 Pa. Commw. Page 296]
The Township of Franklin, Westmoreland County, and the Township's Code Enforcement Officer have appealed from an order of the Court of Common Pleas of that County directing them to issue a permit to erect a dwelling house on a parcel of land containing 10.002 acres. After thoughtful consideration, we have concluded that the lower court's order should be vacated on the ground that the court had no jurisdiction.
It appears from the record that the appellee, Suburban Group, Inc., owns a former farm located in Franklin
[ 22 Pa. Commw. Page 297]
Township and containing about 116 acres which it wishes to subdivide into home sites. For some reason which is not clear on this record, the appellee does not want to file a plan of subdivision pursuant to Franklin Township's Subdivision Regulations. It applied for a building permit, apparently pursuant to the Township's Zoning Ordinance, without filing a plan of subdivision. The Township Code Enforcement Officer refused to issue the permit because of the applicant's failure to apply for and receive subdivision approval. Suburban Group, Inc. then filed in the court below a document called "Notice of Appeal" setting forth the facts relating to the application for the building permit and its refusal, and asking the court to reverse the action of the Code Enforcement Officer. The court below set the matter down for hearing and, after hearing evidence, entered an order sustaining the appeal and directing the issue of the permit.
Section 909 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10909, provides:
"The [Zoning Hearing Board] shall hear and decide appeals where it is alleged by the appellant that the zoning officer has failed to follow prescribed procedures or has misinterpreted or misapplied any provision of a valid ordinance or map or any valid rule or regulation governing the action of the zoning officer. Nothing contained herein shall be construed to deny to the appellant the right to proceed directly in court, where appropriate, pursuant to Pa.R.C.P., sections 1091 to 1098 relating to mandamus."
Section 1001 of the MPC, 53 P.S. § 11001, provides:
"The proceedings set forth in this article [Article X] shall constitute the exclusive mode for securing review of any ordinance, decision, determination or order of the governing body of a municipality, its ...