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JOSEPHINE T. URBANO v. JAMES E. MENESES (06/19/81)

filed: June 19, 1981.

JOSEPHINE T. URBANO, ROLAND J. URBANO, AND NICHOLAS URBANO, APPELLANTS,
v.
JAMES E. MENESES, UPPER MERION TOWNSHIP, ARTHUR R. CUMMINS, CHARLES F. MCCRACKEN, JOHN H. MORRELL, DANIEL L. QUINLAN, JR., PAUL H. UNGER, JOHN R. KEEFER, JOSEPH J. KOLBMANN, FRANCIS J. TOTH AND DANIEL T. MCINTYRE. JOSEPHINE T. URBANO, ROLAND J. URBANO, AND NICHOLAS URBANO, V. JAMES E. MENESES, UPPER MERION TOWNSHIP, ARTHUR R. CUMMINS, CHARLES F. MCCRACKEN, JOHN H. MORRELL, DANIEL L. QUINLAN, JR., PAUL H. UNGER, JOHN R. KEEFER, JOSEPH J. KOLBMANN, FRANCIS J. TOTH, AND DANIEL T. MCINTYRE. APPEAL OF JAMES E. MENESES AND DANIEL L. QUINLAN, JR., CROSS-APPELLANTS, DOCKET NO. 2479 OCTOBER TERM, 1978



No. 2400 October Term, 1978, No 2479 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Civil Division, Equity, Montgomery County, at No. 72-36.

COUNSEL

Joseph L. Torak, King of Prussia, for Urbano appellants (at No. 2400) and for appellees (at No. 2479).

Richard E. Reilly, King of Prussia, for Meneses and Quinlan, appellants (at No. 2479) and for appellees (at No. 2400).

Roger B. Reynolds, Norristown, for Unger et al., appellees.

Cercone, President Judge, and Watkins and Hoffman, JJ. Hoffman, J., concurs in the result. Watkins, J., files a concurring and dissenting opinion.

Author: Cercone

[ 288 Pa. Super. Page 105]

This case was initiated in equity by Josephine, Roland and Nicholas Urbano against Upper Merion Township, its zoning board and two of the Township's solicitors. The defendants

[ 288 Pa. Super. Page 106]

    filed preliminary objections to the Urbanos' complaint. The court sustained the preliminary objections of the Township and of the individual zoning board members, saying that the complaint failed to state a cause of action against the Township and that the zoning board members were immune as high public officials. The court, however, overruled the objections of the defendant solicitors. From this decision, the Urbanos and the solicitors appeal. We conclude that the appeal of the solicitors is from an interlocutory order and must be quashed. Regarding the Township, we find that the court erred in holding that the complaint failed to state a cause of action. As for the individual members of the zoning board, we conclude that these individuals enjoy immunity, but not the immunity afforded high public officials but, rather, judicial immunity.

According to the record, this dispute between the Urbanos and the defendants has been going on for some time. The Urbanos own a combination grocery store and snack bar in Upper Merion Township. In April of 1961, the Urbanos applied for a zoning variance so that they might open a restaurant and truck stop. At that time Daniel L. Quinlan, Jr. was the Township Solicitor, and Arthur R. Cummins, Charles F. McCracken, and John H. Morrell were the individual members of the Board of Adjustment (the zoning board). The Board denied the variance and further said that the Urbanos did not enjoy a nonconforming use for a snack bar. After an appeal to the court of common pleas, it was ultimately held that the Urbanos did not enjoy a nonconforming restaurant use and the Board's other decisions were affirmed. According to the Urbanos, the members of the Board and the Board solicitor conspired to fraudulently deprive the Urbanos of the use of their property for lawful commercial purposes. The Urbanos further claim that for approximately ten years, Upper Merion Township, through its officials and agents, wilfully refused and neglected to review the Urbanos' case or to produce the records which would support the Urbanos' position.

[ 288 Pa. Super. Page 107]

During this ten year period, in 1962, the Township hired a new solicitor and the membership of the zoning board also changed. In 1962, James E. Meneses became the solicitor while Arthur R. Cummins, Charles F. McCracken, and Daniel T. McIntyre sat on the Board of Adjustment. According to the Urbanos, shortly before Meneses became the solicitor, he purchased a piece of real estate close to the Urbanos' grocery store. In August of 1962, the Urbanos asked for a variance on their property, which request was denied by the zoning board. A few months later, Meneses, as principal in a corporation, applied for a variance on his property. The solicitor excused himself from any consideration of this matter and the zoning board granted this variance. However, this decision of the zoning board's was subsequently reversed by the court of common pleas.

According to the Urbanos, on September 10, 1970, "certain Township records" were made available and it is alleged that these records "clearly established" fraud in the review of the Urbanos applications. The Urbanos filed the herewithin action with the equity court. As indicated previously, the lower court sustained the preliminary objections of the Township and of the individual zoning board members, but overruled the objections of the defendant solicitors. The Urbanos and the solicitors now appeal.

We first hold that the appeal of the township solicitors is from an interlocutory order and must be quashed. The order of the lower court, upon which these appeals rest, disposed of three matters. In the first and second part of its order, the court sustained the preliminary objections of the defendant Township and of the defendants who were members of the zoning board, and thus dismissed the Urbanos' complaint as it pertained to the Township and board members. In this respect, the lower court's order was final and appealable by the Urbanos. Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977) (The test for finality of an order is whether the order appealed from terminated the litigation between the parties or effectively deprives the litigant of his day in court.) However, as for

[ 288 Pa. Super. Page 108]

    the defendant township solicitors; the lower court dismissed their preliminary objections, therefore, requiring them to go to trial, an order from which the solicitors appealed. Ordinarily, the dismissal of preliminary objections is an interlocutory order which is not appealable. Judicial Code, The Act of July 9, 1976, P.L. 586, No. 142, § 2, as amended April 28, 1978, P.L. 202, No. 53, § 10(58), 42 Pa.C.S. § 5105 (Supp.1980); Pa.R.A.P. 311, 312, 341; Matter of Phillips, 471 Pa. 289, 370 A.2d 307 (1977); Estate of Shelly, 463 Pa. 430, 345 A.2d 596 (1975). An appeal will only lie from a final order unless otherwise permitted by statute. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); whenever possible, appellate review must await determination of suit notwithstanding any resulting inconvenience to a party. Id. Finality of an order exists when the practical effect of the order is to put the defendant out of court, Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975), or otherwise terminate the litigation by prohibiting either party from proceeding with the action. Marino Estate, 440 Pa. 492, 269 A.2d ...


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