The opinion
Dissenting Opinion by
Judge MacPhail :
I must respectfully dissent. One of the landowner’s (Frey) arguments is that he never received timely notice of an appeal from the decision of the Zoning Hearing Board to the Court of Common Pleas of Allegheny County as mandated by Section 1008(3) of the Pennsylvania Municipalities Planning Code (Code), Act of July 31, 1968, P.L. 805, as amended, added by the Act of June 1, 1972, P.L. 333, as amended, 53 P.S. §11008(3). In the opinion of the court below in support of its order of January 4, 1978, the learned trial judge states that, “The petitioners in this case allege that such notice was sent by ordinary mail to the land *36 owner Frey but Frey alleges that such notice of appeal was never received.” No additional testimony was taken by the trial court. Therefore, any ‘ ‘ allegation” by the petitioners in the court below that timely notice was given must appear in the pleadings or in • the record before the Zoning Hearing Board. I have searched the pleadings and the record for such an allegation and find none.
Continuing on this point, the trial judge’s opinion states, “Assuming arguendo that the notice was not received, where there is no change of position by the landowner a timely appeal will not be dismissed. Graack et al. v. Board of Supervisors of Lower Nazareth Township, et al., 17 Pa. Cmw. 112, 330 A.2d 578 (1975).” The majority opinion of this Court reaches the same conclusion, stating that “Frey intervened in time and was able to protect his interest. ’ ’ The problem is that I find nothing in the record to support the conclusion that Frey was or was not able to protect his interest. Certainly, when the Zoning Hearing Board upheld his permit to build, Frey was justified in proceeding with construction since he received no notice of the appeal. Indeed, there is some indication in the opinion of the lower court that the house had been sold and occupied by the purchaser sometime during the course of these proceedings and before the Court handed down a final order. However, since the only record before this Court is that which was made before the Zoning Hearing Board, it is impossible for me to determine what was done by Frey to his detriment before he received actual notice of the appeal.
Since the very purpose of Section 1008 of the Code is to avoid the possibility of prejudice and the record here is insufficient to determine whether or not there has been prejudice, I would reverse and remand for the taking of additional testimony.