permitting an otherwise untimely appeal where the board failed to provide notice of its final written decision
How later courts described this case
- permitting an otherwise untimely appeal where the board failed to provide notice of its final written decision
Written by the judges who cited it.
The opinion
Concurring Opinion by
Judge Barry:
Although I agree with the majority that this matter must be remanded for a determination of the merits of the appeal, I do so for different reasons.
It does not appear to me from the brief of the appellants that they rely on the argument that their appeal should not have been quashed because a copy of the document dated August 14, 1986 was not mailed to each of them personally but instead was mailed to the attorney who had accompanied them to the hearing on the landowners application for a use variance and variances from the applicable front yard, side yard, rear yard and lot coverage requirements. Instead it appears that they are arguing that their appeal should not have *619 been quashed because the document dated August 14, 1986 was defective in that inter alia, it did not contain findings of fact and conclusion of law, as required by Section 908(9) of the Municipal Planning Code, 53 P.S. §10908(9), and that, therefore the period for appealing the grant of the variances to the landowner did not begin to run on the date that they received it.
In this Courts decision in Border v. Zoning Hearing Board of the City of Easton, 74 Pa. Commonwealth Ct. 638 , 460 A.2d 918 (1983) it was observed that the period within which an aggrieved party must appeal an order of a zoning hearing board is governed by Section 5571(b) of the Judicial Code (Code), 42 P.S. §5571(b), which directs that “an appeal from a . . . government unit to a court . . . must be commenced within 30 days after the entry of the order from which the appeal is taken” and that Section 5572 of the Code, 43 P.S. §5572 states that “[t]he date of service of an order of a government unit which shall be the date of mailing if service is by mail, shall be deemed to be the entry of the order for the purposes of [Subchapter D of Chapter 55 of the Code. ] We then went on to hold that the zoning hearing board had entered its order denying the landowners application for a variance on the date that it had mailed its finding of fact, discussion and. conclusions of law—in other words, its formal decision and order—to landowner, and not the date it had mailed a notice which merely informed the landowner of its decision, and contained no findings of fact or conclusions of law.
In the present matter, appellants appeared at a hearing on the landowners application for the above mentioned variances and voiced their objections to that application. A notice to the Boards decision to grant the landowner a variance was mailed to the attorney who had accompanied them to that hearing. Prior to their appeal of this decision, however, the Board had never *620 mailed to them or their attorney a formal decision and order which contained findings of fact and conclusions of law made by it. In reviewing the record, it does not appear that such a document was ever submitted, let alone mailed to the appellants. Consequently, for the purposes of the landowners motion to quash the appellants’ appeal to the common pleas court, the period for filing that appeal had not even begun to run at the time it was filed. Thus the order quashing the appellants’ appeal was improper.