DeMARE APPEAL, 416 Pa. 39 (1964)

204 A.2d 262

Supreme Court of Pennsylvania.October 7, 1964.
November 10, 1964.

Appeals — Supreme Court — Rule 68 1/2 — Necessity for special allocatur — Quashing appeal — The Borough Code.

1. An appeal to the Supreme Court in the nature of a certiorari will lie only if specially allowed by the Court or by a judge thereof, where a statute specially provides that there shall be no appeal from the decision or order or judgment or decree of a court, or

Page 40

that the decision . . . shall be final or conclusive, or shall not be subject to review, or where the relevant statute is silent on the question of appellate review: Rule 68 1/2. [41]

2. In this case in which it appeared that appellants, who challenged the validity of an ordinance, appealed from its passage pursuant to the Borough Code of 1927, P. L. 519, § 1010, as amended, which provides in part that “the determination and order of the court [of quarter sessions as to the legality of an ordinance] shall be conclusive”; and the appellants appealed to the Supreme Court from the decision of the court of quarter sessions upholding the ordinance but did not comply with the requirements of Supreme Court Rule 68 1/2, it was Held that the appeal should be quashed.

Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN, O’BRIEN and ROBERTS, JJ.

Appeal, No. 279, March T., 1964, from order of Court of Quarter Sessions of the Peace of Allegheny County, Feb. T., 1962 (Miscellaneous), No. 21, in re appeal of Angelo O. DeMare, Howard E. Matthews and James M. Fisher from Ordinance Number 1-8-62-E of Borough of Bethel Park. Appeal quashed.

Appeal from borough ordinance. Before McKAY, J.

Order entered dismissing appeal and plaintiffs’ exceptions dismissed. Plaintiffs appealed.

Leo Kostman, for appellants.

Owen B. McManus, with him Brandt, Riester, Brandt Malone, for appellees.

OPINION BY MR. JUSTICE JONES, November 10, 1964:

Five individuals, the owners of properties abutting on Summit Street in the Borough of Bethel Park who challenged the legality of an ordinance of that borough which assessed two-thirds of the cost of paving Summit Street against their properties, appealed to the Court of Quarter Sessions of Allegheny County. After

Page 41

a hearing, that court found the said ordinance legal and valid. From that order several of the property owners have appealed to this Court.

The appeal in the court below from the passage of the ordinance was taken under the provisions of Section 1010 of the Borough Code.[1] That section provides, in part, that “the determination and order of the court [of quarter sessions as to the legality of an ordinance] shall be conclusive”. Under our Rule 68 1/2 an appeal to this Court where the statute expressly provides “. . . that the decision or judgment or decree of a Court shall be final or conclusive . . .” will lie only if specially allowed by this Court or any judge thereof.

In the case at bar, the right to an appeal falls clearly within the provisions of Rule 68 1/2. Appellants neither sought nor obtained an allowance to take this appeal: therefore, this appeal must be quashed.

Even though this appeal must be quashed, it might not be amiss to note that our examination of the instant record reveals no error which would have warranted reversal of the order of the court below.

Appeal quashed. Appellants pay costs.