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THOMAS J. MYERS v. HAMILTON (09/21/79)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: September 21, 1979.

THOMAS J. MYERS, CHARLES R. KOBASH AND THE TOWNSHIP OF BENSALEM, APPELLANTS
v.
HAMILTON, INC., D/B/A HAMILTON-MAYFAIR MEWS, INC., APPELLEE

Appeal from the Order of the Court of Common Pleas of Bucks County in case of Hamilton, Inc., d/b/a Hamilton-Mayfair Mews, Inc. v. Thomas J. Myers, Building Inspector of the Township of Bensalem and Charles R. Kobash, Acting Zoning Officer of the Township of Bensalem and the Township of Bensalem, No. 78-3468-05-6.

COUNSEL

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

John W. Donaghy, with him Curtin and Heefner, for appellee.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig. Dissenting Opinion by Judge Mencer.

Author: Craig

[ 51 Pa. Commw. Page 505]

In this mandamus action, brought by a landowner, Appellee Hamilton, Inc., against the building inspector and zoning officer of Bensalem Township and the township itself, appellants, to compel the reissuance of building permits revoked by them, the Court of Common Pleas of Bucks County overruled appellants' preliminary objections, which had raised a jurisdictional issue by contending that mandamus is not a proper remedy in the circumstances. The township and its officials have therefore brought this appeal.

We affirm the order of Judge Isaac S. Garb of the Court of Common Pleas of Bucks County, dated June 20, 1978, overruling the preliminary objections, upon Judge Garb's opinion dated July 14, 1978, of record at No. 78-3468-05-6 in the Court of Common Pleas of Bucks County.

Order

And Now, this 21st day of September, 1979, the order of the Court of Common Pleas of Bucks County dated June 20, 1978, overruling preliminary objections, with leave to defendants to file an answer, is affirmed.

[ 51 Pa. Commw. Page 506]

[EDIT ] Order

Now, November 15, 1979, upon consideration of appellants' application for reargument, said application is hereby granted and the Chief Clerk is directed to list the above appeal for reargument before the Court en banc on the next available argument list at Harrisburg.

Disposition

Affirmed.

[EDIT ] Dissenting Opinion by Judge Mencer:

I respectfully dissent. In Lindy Homes, Inc. v. Sabatini, 42 Pa. Commonwealth Ct. 600, 401 A.2d 589 (1979), we held that, where zoning and building permits were revoked by municipal authorities, the builder was required to appeal the revocation, such appeal being an adequate statutory remedy available to him, and that mandamus would not lie.

We based our decision in Lindy Homes on Unger v. Hampton Township, 437 Pa. 399, 263 A.2d 385 (1970), and Fassman v. Skrocki, 37 Pa. Commonwealth Ct. 302, 390 A.2d 336 (1978).

I do not comprehend how a panel of this Court can adopt the opinion of a court of common pleas in the instant case and reach a conclusion, contrary to Lindy Homes, that mandamus does lie to compel the reissuance of revoked building permits.

19790921

© 1998 VersusLaw Inc.



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