Appeal from the Order of the Court of Common Pleas of Bucks County in case of Wilmer S. Weber, Jr. and Barbara G. Weber, his wife v. Bensalem Township and June M. McLoughlin, No. 78-10116-05-6 in Mandamus.
Henry F. Huhn, for appellants.
Thomas M. Guinan, for appellees.
Judges Blatt, Craig and Williams, Jr., sitting as a panel of three. Opinion by Judge Craig. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 58 Pa. Commw. Page 351]
Bensalem Township has appealed from the refusal of the Court of Common Pleas of Bucks County to dismiss, for lack of jurisdiction, a mandamus action filed by the landowner appellees.
In their mandamus complaint filed October 12, 1978, the landowners averred, among other things, that: (1) the township's zoning hearing board had, on January 4, 1977, held a hearing on landowners' application for a variance to permit a real estate and insurance office in a residential district; (2) the board had rendered no decision; (3) therefore, pursuant to
[ 58 Pa. Commw. Page 352]
the provisions of Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC),*fn1 the variance application must be deemed to have been granted; and (4) a permit, accordingly demanded from the township zoning officer, has been refused. The township responded with preliminary objections raising questions of jurisdiction and demurrer, and bearing a verification; after the landowners' answer, the township proceeded to take depositions on the factual question of whether or not the landowners had withdrawn their variance application before the board.
The common pleas court overruled the preliminary objection raising a question of jurisdiction, but sustained the demurrer on the ground that the complaint failed to aver when, if ever, the board hearings had been completed, and gave leave to file an amended complaint.
The township here contends that the jurisdictional objection should have been sustained because mandamus does not lie. The township also contends that the common pleas court should have decided the factual question concerning the alleged withdrawal of the application, in connection with deciding the jurisdictional question.
On the first point, we note that jurisdiction in mandamus over the subject matter is proper. In Foltz v. Zoning Hearing Board of Monroeville, 5 Pa. Commonwealth Ct. 304, 290 A.2d 269 (1972), this court clearly decided that mandamus is a proper remedy to compel the issuance of a permit, in accordance with ...