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ROBERT N. HUMPHREYS v. JAMES P. CAIN (03/02/84)

decided: March 2, 1984.

ROBERT N. HUMPHREYS, ET UX., ET AL., APPELLANTS
v.
JAMES P. CAIN, ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Robert N. Humphreys, Barbara Humphreys, John R. Thomas, Constance B. Thomas, Harrison G. Thomas, W. H. Rowles, Ruthe E. Rowles, M. E. Broderick, Martha A. Broderick, Vincent P. Sweeney, Gladys Sweeney, W. Milton Danver, Barbara Evans Danver, Jeremiah W. O'Brien, Elizabeth P. O'Brien, Philip E. Schneider, Joan G. Schneider, William D. West, Candace F. West, John F. Oyler, Nancy L. Oyler, Clare B. McDermott, Eleanor H. McDermott, Robert D. Mincin, Lynn M. Mincin, Paula P. Gerstenberger, James H. Frear, III, Frances C. Frear, Robert F. Henninger, Jr., Laurie R. Henninger, Lawrence J. Kennedy, Marie Kennedy, Walter H. Bollinger, James B. Fanning, Joan W. Fanning, Robert V. Flint, George M. Nicholson, Robert L. Wells and Kathleen Banks v. James P. Cain, David T. Williams, James W. Harrod, Steven M. Feller, Ruth Reidbord, Gregory M. Drahuschak, Mary B. Larsen, James M. Delsole, Howard F. Voight and James O. Taylor, No. GD 83-10801.

COUNSEL

Robert X. Medonis, for appellants.

Edwin L. Klett, with him, Robert L. Byer, Eckert, Seamans, Cherin & Mellott, for appellees.

Judge Barry. Opinion by Judge Barry.

Author: Barry

[ 84 Pa. Commw. Page 223]

Before this Court is a motion for stay which has been filed by Robert N. Humphreys, et ux., et al., appellants herein, at No. 1927 C.D. 1983. The motion recites that their appeal has been filed from an Adjudication and Decree Nisi by the Honorable Emil E. Narick, Judge of the Court of Common Pleas of Allegheny County, dated February 28, 1984, which dissolved a preliminary injunction entered by the Honorable Maurice Louik on July 14, 1983. The case involves a dispute between appellants, citizens of Mount Lebanon Township, Allegheny County, who object to the use of Project 70 Funds*fn1 and want Bird Park in the Township to remain in its natural state, and citizens and officials of the Township who wish to build a soccer field in the park (appellees).

In the opinion of this Court the appeal must be quashed. All counsel agree that Judge Narick's excellent and scholarly Adjudication and Decree Nisi is an interlocutory order. It is a decree nisi, and not by its terms final. When the question of this Court's jurisdiction was raised, counsel for the appellees cited to the Court the case of Agra Enterprises, Inc. v. Brunozzi, 302 Pa. Superior Ct. 166, 448 A.2d 579

[ 84 Pa. Commw. Page 224]

(1982). In that case the Superior Court held that even though Pa. R.C.P. No. 1518 requires the filing of exceptions and the entry of a final decree before an appeal can be perfected, the enactment of Pa. R.A.P. 311 in 1976, 42 Pa. C.S. ยง 5105(c), specifically grants an appeal "as of right" from orders which involve injunctions (Pa. R.A.P. 311(a)(4)). The Superior Court in Agra concluded that because of the promulgation of Pa. R.A.P. 311, an appeal from a Decree Nisi in a permanent injunction case is a matter of right and need not await the filing and disposition of exceptions by the court of common pleas.

The language of Pa. R.A.P. 311(a)(4) is as follows:

Rule 311. Interlocutory Appeals as of Right.

(a) General Rule. Except as otherwise prescribed by general rule, an appeal may be taken as of right from:

(4) Injunctions. An order granting, continuing, modifying, refusing or dissolving injunctions, or refusing to ...


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