Opinion
September 27, 1971.
September 29, 1971.
Appeals — Jurisdiction — Commonwealth Court — Appeal from court of common pleas — Action arising under city ordinance — Order dismissing preliminary objections.
In this case, in which it appeared that plaintiff instituted an action in equity against defendant to enjoin alleged violations of the Philadelphia Air Management Code; that defendant filed preliminary objections questioning the jurisdiction of the court below due to the plaintiff's alleged failure to exhaust administrative remedies and that these objections were dismissed and defendant appealed; it was Held that, if the decree of the court below were appealable, an issue not decided, the Commonwealth Court would have Jurisdiction, under the Appellate Court Jurisdiction Act of July 31, 1970, P. L. 673, as amended.
Mr. Chief Justice BELL and Mr. Justice BARBIERI took no part in the consideration or decision of this case.
Before JONES, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 436, Jan. T., 1971, from order of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1971, No. 175, in case of City of Philadelphia v. Franklin Smelting and Refining Company, Inc., and Metals Development Corporation. Case remitted to Commonwealth Court.
Equity.
Order entered dismissing preliminary objections of defendant, order by HIRSH, J. Defendant appealed.
Jeffrey A. Weiner, with him Leonard M. Sagot, John J. Poserina, Jr., Arthur Silverman and Ettinger, Poserina, Silverman, Dubin, Anapol Sagot, for appellant.
S. Jay Sklar, Assistant City Solicitor, with him John Mattioni, Deputy City Solicitor and Levy Anderson, City Solicitor, for City of Philadelphia, appellee.
The City of Philadelphia (appellee) instituted an action in equity against the Franklin Smelting and Refining Company (appellant) to enjoin alleged violations of the Philadelphia Air Management Code. The appellant filed preliminary objections questioning the jurisdiction of the court below due to the appellee's alleged failure to exhaust administrative remedies. These objections were subsequently dismissed and this appeal followed.
While it is clear beyond question that the decree from which this appeal was taken is interlocutory, appellant contends that the decree is appealable under the Act of March 5, 1925, P. L. 23, § 1, 12 Pa.C.S.A. § 672. Before any disposition of the appeal on the merits and prior to any application of the Act of 1925, we must determine the preliminary question concerning our jurisdiction.
Section 402(4) of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P. L. 673, § 402(4), 17 Pa.C.S.A. § 211.402 (4) (Supp. 1971) pertinently provides that "The Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the Courts of Common Pleas in . . . all actions or proceedings arising under any . . . city . . . home rule charter or local ordinance or resolution." Moreover, Section 501 of the Appellate Court Jurisdiction Act of 1970 states: "An appeal authorized by law from an interlocutory order in a matter shall be taken to the appellate court having jurisdiction of final orders in such matter." Act of July 31, 1970, P. L. 673, § 501, 17 Pa.C.S.A. § 211.501 (Supp. 1971). Accordingly, if the decree of the court below is appealable, an issue we do not now decide, the Commonwealth Court would have jurisdiction. Although the Act of 1925 does not include any reference to the Commonwealth Court which was created forty-five years after the passage of the Act of 1925, any confusion has been obviated by Section 509(g)(30), a recent amendment to the Appellate Court Jurisdiction Act: "the following acts and parts of acts are hereby specifically repealed insofar as they vest jurisdiction and powers in courts in any manner inconsistent with this Act. . . . Section 1, Act of March 25, 1925 (P. L. 23). . . ."
The matter is remitted to the Commonwealth Court.
Mr. Chief Justice BELL and Mr. Justice BARBIERI took no part in the consideration or decision of this case.