Appeal from the Order of the Court of Common Pleas of Bucks County in the case of George R. Galbreath, Trustee v. Board of Supervisors of Northampton Township, No. 79-2247-12-5.
Theodore K. Warner, Jr., with him Robert C. Steiger, Harper, George, Buchanan & Driver, for appellant.
Donald B. McCoy, for appellee.
President Judge Crumlish and Judges Blatt and Craig, sitting as a panel of three. Opinion by Judge Craig.
[ 55 Pa. Commw. Page 166]
The Board of Supervisors of Northampton Township (board) appeals from a decision of the Court of Common Pleas of Bucks County which held that, because curative amendment proceedings initiated by developer George R. Galbreath had been suspended by the board for more than thirty days, the suspension constituted a deemed denial of the curative amendment application, pursuant to Section 1004 of the Pennsylvania Municipalities Planning Code (MPC),*fn1 so that the developer was entitled to appeal to court.
On September 28, 1978, the developer had filed with the board a curative amendment application challenging the validity of Northampton Township's zoning ordinance. The board held hearings on December 13, 1978 and January 24, 1979. Although a further hearing was scheduled for February 28, 1979, the
[ 55 Pa. Commw. Page 167]
board, on February 10, 1979, claiming to act under Section 609.2 of the MPC, 53 P.S. § 10609.2 (added by Section 2 of the Act of October 5, 1978, P.L. 1067 [also referred to as Act 249]), effective October 5, 1978, declared certain ordinance provisions invalid and began consideration of its own tentative curative amendment to overcome the invalidity.
The board cancelled the hearing scheduled for February 28, 1979, held no more hearings after January 24, 1979, and took no action on the developer's application. Treating the board's inaction as a deemed denial, the developer on March 1, 1979 appealed to the common pleas court which denied the board's motion to quash the developer's appeal. The board appeals to this court from that denial.
Before proceeding with the issues here raised by the board, we must rule on the developer's motion to quash the board's appeal to this court. Developer contends that the common pleas court's order denying the board's motion to quash is interlocutory and unappealable because no question of jurisdiction was raised by the board. We cannot agree.
An order determining a question of jurisdiction, either way, was appealable pursuant to Section 1 of the Act of March 5, 1925, P.L. 23, as amended, formerly 12 P.S. § 672,*fn2 at the time pertinent here. The board's motion to quash in common pleas claimed that the court lacked jurisdiction because developer's appeal was premature.
The motion to quash developer's appeal to the lower court, based on the municipality's claim of the absence of an appealable final order of the board, was a jurisdictional claim because, where the lower tribunal has made no final disposition, appellate jurisdiction
[ 55 Pa. Commw. Page 168]
does not lie. Stadler v. Borough of Mount Oliver, 373 Pa. 316, 95 A.2d 776 (1953).
Moreover, where the question raised is failure to exhaust or employ an administrative remedy which is exclusive, we have held that the question involves the jurisdiction of the court wrongfully chosen. See Morrison v. Pennsylvania State Police, 47 Pa. Commonwealth Ct. 508, 408 A.2d 575 (1979), holding that where the Pennsylvania Board of ...