Appeal from the Order of the Court of Common Pleas of Montgomery County in case of In Re: Appeal of John W. O'Donnell, Jr., Frank E. Feheley, William M. Keim, William M. Smith and Joan M. Kellett, No. 72-03090.
Walter W. Rabin, with him Meltzer & Schiffrin, for appellant.
Gregory J. Dean, with him Meneses & Dean, for appellee.
Judges Wilkinson, Jr., Blatt and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 44 Pa. Commw. Page 202]
The Court of Common Pleas of Montgomery County has denied the petition of Arthur Goldstein (Appellant) for a Declaratory Judgment*fn1 against Upper Merion Township (Township) by sustaining Township's answer to Appellant's petition raising questions of law. Appellant has appealed from that order alleging that the trial court erred as a matter of law.
[ 44 Pa. Commw. Page 203]
From the Appellant's petition, the Township's answer,*fn2 and the opinion of the trial court, we ascertain that Appellant presently operates a carwash and beverage distributorship. Appellant's business is under a written lease on a tract of real estate containing 1.266 acres. The real estate in question lies within the Valley Forge Shopping Center and is zoned (by the Township) as SC-Shopping Center District. Appellant's use of his premises has been approved by the Zoning Hearing Board (Board) of the Township. Appellant desires to exercise his option to purchase the premises he presently leases and has advised the Township of his intention to do so. The Township has informed Appellant that if he exercises his option, the operation of his business thereafter will constitute a violation of the Township's Zoning Ordinance (Ordinance).*fn3 Appellant contends that since he did not seek a change in existing use or structure on his premises, and since the only change will be that of ownership, he has no proceeding available to him which will resolve his controversy with the Township. Therefore, Appellant seeks an order of the Court authorizing him to exercise his option without the approval of the Township and without being in violation of the ordinance.
The Township's answer raising questions of law averred that (1) Appellant's exclusive remedy was under the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended,
[ 44 Pa. Commw. Page 20453]
P.S. § 10101 et seq., (2) the instant proceeding is barred by res judicata, and (3) the Appellant has a statutory remedy available, i.e., the Code.*fn4
In its opinion refusing the petition, the trial court held that the Code provided Appellant with an exclusive statutory remedy and therefore Appellant's petition under the Act was not a proper remedy.
Appellant argues that the trial court erroneously concluded that he was attempting to circumvent the Code by securing a review of a decision by the Township in a Declaratory Judgment proceeding. In fact, Appellant contends, he was pursuing the only remedy he had because the Township made no decision regarding his use of the property, ...