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decided: July 18, 1977.


Appeal from the Order of the Court of Common Pleas of Bucks County in case of Bridgeview Apartments, Inc. v. Robert D. Brady, Gwendolyn J. Smith, G. Roger Bowers, Theodore R. Zajac, Stephen S. Kelly, Warren Brady and Henry George, No. 74-2275-05-6.


Leslie G. Dias, with him Henry F. Huhn, for appellants.

William J. Fuchs, with him Gordon L. Keen, Jr., and Obermayer, Rebmann, Maxwell & Hippel, for appellee.

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

Author: Mencer

[ 31 Pa. Commw. Page 127]

This appeal has been taken by the supervisors and other officers of Bensalem Township in Bucks County (hereinafter Township) from the lower court's order directing them to issue certain zoning and building permits to Bridgeview Apartments, Inc. Bridgeview had brought an action in mandamus when the Township refused to reissue permits which had been originally granted in 1971. Since the lower court entered judgment without giving the Township an opportunity to file exceptions and without the ruling on such exceptions by the court en banc, as provided in Pa. R.C.P. No. 1038,*fn1 we reluctantly must remand.

In its opinion,*fn2 the lower court stated the relevant facts as follows:

[I]n March, 1971 plaintiff's [Bridgeview's] predecessor*fn1a made applications for zoning and building permits and also for site plan approval in order to construct certain apartment dwellings on two tracts of land owned by it in Bensalem Township. At that time the effective zoning ordinance permitted such use. Subsequently thereto, plot plans were submitted and a second

[ 31 Pa. Commw. Page 128]

    set of plot plans showing water, sewage, surface drainage and elevations. Site plan approvals were granted, building and zoning permits were granted and an agreement entered into between the township and the plaintiff regarding this development. As a result of the approvals and permits rendered plaintiff completed settlement upon the real estate in question under which it held equitable title previously under an agreement of sale, and work began upon the land in the nature of staking and earth moving at a total cost of approximately $40,000. Shortly thereafter due to some financing difficulties construction was stopped and it was not until December of 1973 that the plaintiff decided to continue with the project. At that time the plaintiff applied for a re-issuance of the building and zoning permits and this application was refused.

The lower court "ordered, directed and decreed that judgment be entered in favor of the plaintiff."

In its appeal to this Court, the Township has argued, in the alternative, that (1) the case should be remanded for the filing and disposition of exceptions to the decision of the court below, (2) the Township never had the authority under the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10101 et seq., to approve Bridgeview's plans,*fn3 and (3) approval of the

[ 31 Pa. Commw. Page 129]

    plans was unlawful for failure to comply with public-meeting requirements under the MPC and the so-called Right-to-Know Act, Act of June 21, 1957, P.L. 392, as amended, 65 P.S. § 251 et seq.

The applicable procedure in this case is found in Pa. R.C.P. No. 1038, which provides, in pertinent part:

(b) The decision of the trial judge may consist only of general findings as to all parties but shall dispose of all claims for relief. The trial judge may, if he wishes, include as part of the decision specific findings of fact and conclusions of law with appropriate discussion.

(c) The decision may be made orally in open court at the end of the trial, and in that event shall be forthwith transcribed and filed in the office of the prothonotary, or it may be made thereafter in writing and filed forthwith. . . .

(d) Within twenty (20) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to final judgment, leave is granted to file exceptions raising these matters. No motion for a new trial, for judgment non obstante veredicto, in arrest of judgment or to remove a non-suit may be filed.

(e) The prothonotary shall, on praecipe, enter final judgment on the decision if no exceptions have been filed within the twenty (20) day period or if a waiver in writing of the right to file exceptions signed by all parties has

[ 31 Pa. Commw. Page 130]

    been filed. Except as provided by Rule VII of the Special Rules, Courts of Common Pleas, First Judicial District, Philadelphia County, promulgated July 31, 1963, exceptions shall be heard by the court en banc, which shall sustain or dismiss them in whole or in part, affirm, modify or reverse the decision, direct the entry of judgment in favor of any party, or order a new trial as to all or any of the issues or parties. The prothonotary shall immediately give written notice by ordinary mail to each party who has appeared in the action or to his attorney of record of the entry of the final judgment or of any other order of the court.

When considering this rule, we are mindful that the procedural rules are meant to be "liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable." Pa. R.C.P. No. 126. Concurrently, however, we cannot disregard the letter of a rule "under the pretext of pursuing its spirit" when the wording is clear and unambiguous. Pa. R.C.P. No. 127(b).

As to when the court may enter final judgment, Pa. R.C.P. No. 1038(e) suggests that it may do so only after argument on, and disposition of, exceptions. 2 Goodrich-Amram 2d § 1038(e):1 (1976). The importance of allowing the filing of exceptions in a mandamus action was most recently highlighted in Ravenell v. Harrisburg Housing Authority, 29 Pa. Commonwealth Ct. 167, 370 A.2d 761 (1977), where we stated: "[O]ur review on appeal is limited to a determination of whether or not the lower court erred when it disposed of whatever exceptions were brought before it: 'The preliminary finding of the judge is neither a verdict nor a judgment. It cannot be reviewed on appeal. . . . [I]t is from the court's decision upon these exceptions that an appeal must rest. . . .'" Id. at 170,

[ 31 Pa. Commw. Page 131370]

A.2d at 762 (citation omitted, emphasis in original). See also Lundvall v. Camp Hill School District, 25 Pa. Commonwealth Ct. 248, 362 A.2d 482 (1976).

Once the decision of the trial judge was handed down, in accord with Pa. R.C.P. No. 1038(b), the Township had the right to file exceptions to it under Pa. R.C.P. No. 1038(d) and to have the court en banc pass on these exceptions under Pa. R.C.P. No. 1038(e). By directly entering judgment, the lower court erred and deprived the Township of its procedural rights. Since a ruling on exceptions is not before us at this time, there is technically nothing for us to review under Ravenell, supra.*fn4

Although the lower court procedurally erred here, we "may disregard any error or defect of procedure which does not affect the substantial rights of the parties."

[ 31 Pa. Commw. Page 132]

    to, and in accord with, Pa. R.C.P. Nos. 1099 and 1038 (d).


Order vacated. Case remanded.

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