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JAY FORREST KRATZ v. BOARD COMMISSIONERS UPPER GWYNEDD TOWNSHIP ET AL. BOARD COMMISSIONERS UPPER GWYNEDD TOWNSHIP (03/05/85)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: March 5, 1985.

JAY FORREST KRATZ, JEFFREY KRATZ
v.
BOARD OF COMMISSIONERS OF UPPER GWYNEDD TOWNSHIP ET AL. BOARD OF COMMISSIONERS OF UPPER GWYNEDD TOWNSHIP, APPELLANT

Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Jay Forrest Kratz and Jeffrey F. Kratz v. Board of Commissioners of Upper Gwynedd Township, Donald A. Hamme, Jr., Barbara Anne E. W. Hamme, Paul D. Lukens, Carey D. Lukens, Intervenors, No. 82-00084.

COUNSEL

Robert J. Kerns, Landis, Williams & Kerns, for appellant.

George Q. Hardwick, for appellees.

James C. Sommar, Holl, Sommar & Tracy, for intervenors.

Judges Doyle and Palladino and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Palladino. Judge Williams, Jr., did not participate in the decision in this case.

Author: Palladino

[ 88 Pa. Commw. Page 109]

The Board of Commissioners of Upper Gwynedd Township (Board) appeals from an order of the Montgomery County Court of Common Pleas (trial court) which reversed a decision of the Board.

Appellees challenged the Upper Gwynedd Township Zoning Ordinance (Ordinance) on the ground that it unconstitutionally excluded mobile home parks, and requested a curative amendment which would allow Appellees to develop their parcel of land as a mobile home park. The Board dismissed Appellees' challenge and request for a curative amendment and instead enacted a new ordinance which allows mobile home parks.*fn1 Appellees appealed to the trial court which reversed the decision of the Board and remanded the case to the Board for consideration of an appropriate development plan acceptable to both parties.*fn2 The trial court retained jurisdiction during the pendency of the proceedings before the Board, stating that if the Township did not approve such a plan within

[ 88 Pa. Commw. Page 110]

    ninety days the court would then grant appropriate relief.*fn3

The Board asserts that jurisdiction is conferred upon the Commonwealth Court pursuant to 42 Pa. C.S. § 762(a)(4). Our jurisdiction under this section, however, is limited to appeals from final orders of the courts of common pleas. See 42 Pa. C.S. § 762. "[A]n adjudication must dispose of the entire case, end the litigation, or effectively put the litigant out of court in order for it to be considered a final and appealable order." Weiss v. City of Philadelphia, 65 Pa. Commonwealth Ct. 260, 266, 442 A.2d 378, 381 (1982) (citation omitted).

It is clear from our review of the trial court's order and the record that the adjudication did not dispose of the entire case, end the litigation, or effectively put the litigants out of court. To the contrary, the trial court remanded the case to the Board and retained jurisdiction for further proceedings in the event that the litigants were unable to reach an agreement. Further, the trial court did not order any relief but clearly contemplated further proceedings before the Board and/or the trial court to fashion such relief.

The order is, therefore, interlocutory in nature and is not appealable unless expressly authorized by statute.*fn4 Commonwealth of Pennsylvania v. 1316, Inc., 48 Pa. Commonwealth Ct. 514, 410 A.2d 906 (1980). We note that even though the parties have not raised

[ 88 Pa. Commw. Page 111]

    this issue, "appellate jurisdiction of an interlocutory order may not be assumed, even with the consent of the parties." Id. at 515, 410 A.2d at 907.

We must, therefore, quash the Board's appeal.

Order

And Now, March 5, 1985, the appeal by the Board of Commissioners of Upper Gwynedd Township is quashed.

Judge Williams, Jr., did not participate in the decision in this case.

Disposition

Appeal quashed.


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