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NATIONAL DEVELOPMENT CORPORATION v. TOWNSHIP HARRISON AND HARRY B. GOURLEY (01/07/82)

decided: January 7, 1982.

NATIONAL DEVELOPMENT CORPORATION, APPELLEE
v.
TOWNSHIP OF HARRISON AND HARRY B. GOURLEY, BUILDING INSPECTOR OF THE TOWNSHIP OF HARRISON, APPELLANTS. ZONING HEARING BOARD OF THE TOWNSHIP OF HARRISON, APPELLANT V. NATIONAL DEVELOPMENT CORPORATION, APPELLEE



Appeals from the Order of the Court of Common Pleas of Allegheny County in the case of National Development Corporation v. Township of Harrison and Harry B. Gourley, Building Inspector of Township of Harrison, No. GD 80-31295, and in the case of National Development Corporation v. Zoning Hearing Board of the Township of Harrison, No. SA 862 of 1981.

COUNSEL

Jon Hogue, with him Linda H. Jones, Titus, Marcus & Shapira, for appellants.

Joel P. Aaronson, Baskin and Sears, P.C., for appellee.

Judge Craig. Memorandum Opinion by Judge Craig.

Author: Craig

[ 64 Pa. Commw. Page 55]

Two motions by National Development Corporation (developer), to quash a zoning appeal from the Court of Common Pleas of Allegheny County and also to quash an appeal by Harrison Township from a mandamus judgment in that same court, are here consolidated for consideration. Both appeals originated from the developer's application for subdivision and zoning approval of a proposed 100-unit apartment complex to be located in an R-3 multiple-family residential district of the township.

[ 64 Pa. Commw. Page 56]

In an earlier mandamus action, the same court of common pleas at G.D. 80-07212 had issued a peremptory mandamus order requiring the township to approve the developer's November 13, 1979 preliminary subdivision application because the lack of official action on that application until March 17, 1980, 125 days later, required that the application be deemed as approved under Section 508(3) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10508(3). The township filed, but did not present or pursue, a petition to open that peremptory judgment.

Mandamus

The record in the second mandamus case, from G.D. 80-31295 below and docketed at No. 1211 C.D. 1981 on appeal here, discloses the subsequent chronology, as follows:

November 3, 1980 -- The township planning commission approved the final subdivision application.

February 23, 1981 -- The township building inspector denied zoning approval and a building permit, reciting various reasons. The developer then pursued the mandamus action against the township.

April 13, 1981 -- After hearing, a single judge of the common pleas court issued a non-jury decision containing numbered findings of fact and conclusions of law, and ordered that the township issue the building permit. The decision found that the application complied in every respect with the R-3 zoning district requirements, that planned residential development ordinance provisions were not applicable, and that state building construction approval governed because the township had no building code. The township filed no exceptions to that decision.

April 30, 1981 -- Final mandamus judgment was entered, on praecipe filed for the developer.

[ 64 Pa. Commw. Page 57]

May 13, 1981 -- The township, without more, appealed to this court.

Therefore, as to the mandamus appeal, the question of law is: Where an appeal is filed from a trial judge's initial adjudication in mandamus without filing exceptions, must the appeal be quashed?

The Pennsylvania Rules of Civil Procedure and our decisions require that such an appeal be quashed because appellate review is impossible. Ravenell v. Harrisburg Housing Authority, 29 Pa. Commonwealth Ct. 167, 370 A.2d 761 (1977). In Ravanell, we quashed a mandamus appeal sua sponte in the light of Pa. R.C.P. No. 1038(d), made applicable to mandamus by Pa. R.C.P. No. 1099; the former rule requires the filing of exceptions to the initial decision and expressly provides that matters not covered by exceptions are deemed waived. In Ravanell, we followed Lundvall v. Camp Hill School District, 25 Pa. Commonwealth Ct. 248, 362 A.2d 482 (1976), an appeal from a non-jury trial in assumpsit.

Bridgeview Apartments, Inc. v. Brady, 31 Pa. Commonwealth Ct. 126, 375 A.2d 854 (1977), where we remanded a mandamus case to permit exceptions to be filed, is not applicable because there the lower court's initial decision expressly ordered "that judgment be entered in favor of the plaintiff," thus entirely foreclosing the defendant from filing exceptions within the period allowed by the rule (now ten days). In the present case, the numbered findings and conclusions in the trial judge's adjudication were followed by his order stating, "IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Defendants shall forthwith issue to Plaintiff a building permit. . . ." Those terms are similar to the straightforward mandate in the Ravanell case and unlike the express direction "that judgment be entered" in the Bridgeview Apartments case. The use of the word "adjudged" in the adjudication

[ 64 Pa. Commw. Page 58]

    order in this case is not a direction to enter judgment, which here was not done until after the expiration of the ten-day period, and then only on praecipe.

C.B. Co. v. Rostraver Township Zoning Hearing Board, 49 Pa. Commonwealth Ct. 204, 410 A.2d 1298 (1980), cited by the township here, is inapplicable because that was a statutory zoning appeal not governed by Pa. R.C.P. No. 1038. Also, the township's reference to Wedgewood Associates v. Caln Township, 54 Pa. Commonwealth Ct. 557, 422 A.2d 1190 (1980), for the proposition that this case should be treated as a case stated because partly based on a stipulation, is inapposite because Wedgewood stands for the opposite ...


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