finding lack of jurisdiction where notice of appeal filed prior to notice of deemed decision on special exception application
How later courts described this case
- finding lack of jurisdiction where notice of appeal filed prior to notice of deemed decision on special exception application
- quashing an appeal as premature where appellants filed their appeal to the court of common pleas before the issuance of a decision and before deemed approval occurred
- quashing appeal as premature where appellants filed their appeal to the trial court before issuance of a decision and before deemed approval occurred
- where zoning hearing board orally denied applicant’s request for special exception but failed to reduce its decision to writing, applicant’s request deemed automatically granted under Section 908(9) of the MPC
Written by the judges who cited it.
The opinion
KELLEY, Judge,
concurring.
I join in the majority’s decision and write separately to point out how the events, which occurred in this case, have brought about the unfortunate result of the substantive merits in this matter never being addressed by the courts. As set forth by this Court in Amerikohl Mining Co. v. Fayette County Zoning Hearing Board (Pa.Cmwlth., No. 1007 C.D.1997, filed March 19, 1998), after a series of public hearings, the Fayette County Zoning Hearing Board (Board) orally announced its decision on October 23, 1996 approving Amerikohl’s application seeking a special exception with several conditions. A representative of Amerikohl, counsel for Amerikohl, ¿is well as members of the press were in attendance. The following day, a newspaper of general circulation reported the Board’s decision.
On November 29, 1996, Phyllis Jin, attorney and member of the Board, drafted a written decision granting conditional approval of Amerikohl’s application. On December 2, 1996, the proposed decision was submitted to the Fayette County Office of Planning and Community Development (Planning Office). Pursuant to internal operating procedures, the Planning Office mailed the decision to Board Chair, Ross DiMarco, for his execution and return. DiMarco signed and dated the decision and hand delivered it to the Planning Office during the first week of December 1996. However, the decision was lost and never mailed to Amerikohl or any other party of record. Thus, the first in the series of unfortunate events occurred' — the decision was lost and a written decision by the Board was not rendered within the required 45 days.
Thereafter, on December 12, 1996, Am-erikohl filed an action in mandamus against the Board in the trial court. Am-erikohl’s complaint requested that the trial court order the Board to issue a written decision approving Anerikohl’s application for special exception without conditions. MPA intervened.
A non-jury trial was held before the trial court on January 21, 1997, at which time the Board provided Amerikohl with a copy of the Board’s decision that had been redrafted because the Board never located the original decision. By order filed March 18, 1997, the trial court held that Amerikohl’s application was deemed approved without condition due to the Board’s failure to render a written decision within 45 days of the last hearing as required by Section 908(9) of the Pennsylva *1011 nia Municipalities Planning Code (MPC). 1
On March 31, 1997, MPA filed a motion to reconsider with the trial court, which was opposed by Amerikohl. The trial court denied the motion for reconsideration on April 11, 1997. No post trial motions were filed.
On April 17, 1997, MPA filed a notice of appeal with this Court and raised the issue of whether the trial court erred in determining that Amerikohl was entitled to deemed approval. However, this Court held that we were precluded from addressing the merits of MPA’s appeal in the absence of a motion for post-trial relief. Hence, this Court affirmed the trial court’s order without reaching the substantive issue of whether the trial court correctly determined that Amerikohl was entitled to deemed approval of its application for special exception without conditions. Thus, another unfortunate event.
Another unfortunate event occurred when MPA or another interested party failed to timely appeal the deemed decision as permitted by Section 1002-A of the MPC, 53 P.S. § 11002-A. Consequently, the opportunity to have the merits of the deemed decision reviewed was lost. And now the majority holds in the current matter before this Court that MPA’s appeal of the Board’s decision must be quashed because MPA’s November 21, 1996 appeal of the Board’s oral decision was premature because it was filed before the entry of a final order. Accordingly, this Court affirms the trial court’s order quashing MPA’s appeal from the Board’s oral decision and holds that since MPA did not file a timely appeal from the deemed approval of Amerikohl’s application for special exception, the merits of MPA’s appeal are not properly before this Court.
While I agree with the majority’s decision, I find it regrettable that the merits have not been reached in this matter due to the sequence of events which occurred starting with the administrative breakdown by the Board and ending with MPA’s failure to follow the procedure set forth in the MPC for appealing a deemed decision. The procedures set forth in the MPC are to protect not only landowners, but also all interested parties and this case is a classic example of what happens when a party fails to take advantage of these protective procedures.
. Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(9).