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BETHEL PARK MUNICIPAL COUNCIL ET AL. v. SIMMONS PARK PROPERTIES (07/27/82)

decided: July 27, 1982.

BETHEL PARK MUNICIPAL COUNCIL ET AL., APPELLANTS
v.
SIMMONS PARK PROPERTIES, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Simmons Park Properties, Inc. v. Bethel Park Municipal Council, Municipality of Bethel Park; James M. Martin, Municipal Manager; Norman Walker, Code Enforcement Officer; and John E. Kanon, Planning Director, No. GD 79-15304.

COUNSEL

Victor R. Delle Donne, for appellants.

Richard L. Rosenzweig, Rosenzweig, Rosenzweig & Burton, for appellee.

President Judge Crumlish and Judges Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 68 Pa. Commw. Page 13]

Appellants*fn1 have brought this appeal from an order of the Court of Common Pleas of Allegheny County granting mandamus relief to Simmons Park Properties, Inc. (Appellee). The trial court's order requires that Appellants issue building permits which had been requested by Appellee.

Appellee is the owner of a tract of land in Bethel Park comprising approximately 31 acres. The property is located in an R-T zone which allows townhouse development. Appellee has completed the construction of townhouses on a portion of its property and filed the instant mandamus complaint on June 8, 1979 to compel the issuance of additional building permits to allow further development. Appellee plans to construct a total of 254 units on its tract. A zoning officer denied Appellee's application for the building permits on the ground that the tract was approved for development in five sequential phases and that the building permits requested related to the final phase. Since only "phase 1" had been completed, the zoning officer reasoned that permits for "phase 5" could not yet be issued. After a non-jury trial was held on the complaint, the trial judge concluded that the approved

[ 68 Pa. Commw. Page 14]

    site plan was not conditioned on the development of the phases in a certain sequence and granted the mandamus relief requested.

At oral argument before this Court, Appellee moved to have the instant appeal quashed on the grounds that Appellants failed to file exceptions to the trial court's order pursuant to Pa. R.C.P. No. 1038 and failed to have the order reduced to judgment prior to their appeal as required by Pa. R.A.P. 301(c). We conclude that the motion to quash should be granted.

The trial court's order in this case was entered on May 5, 1981. The record discloses that Appellants filed no exceptions to the order and final judgment was never entered on the docket of the court of common pleas. Appellants filed their notice of appeal with this Court on May 26, 1981.

The law is now clear that a mandamus appeal must be quashed when no exceptions to the trial judge's decision are filed and final judgment is not entered prior to appeal. Pa. R.C.P. No. 1099 provides that when, as here, a mandamus action is tried by a judge sitting without a jury, the trial must be conducted in accordance with Pa. R.C.P. No. 1038 which governs non-jury trials of assumpsit actions. Pa. R.C.P. No. 1038(d) provides, in pertinent part, as follows:

Within ten (10) days after notice of the filing of the decision, exceptions may be filed by any party to the decision or any part thereof, to rulings on objections to evidence or to any other matters occurring during the trial. . . . Matters not covered by exceptions are deemed waived unless, prior ...


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