Opinion
Argued October 29, 1976
December 1, 1976.
Zoning — Manner of appeal — Act of 1927, March 31, P.L. 98 — Petition for a writ of certiorari — Notice of appeal — Timeliness of appeal — Mandatory requirements.
1. An appeal from a zoning board taken pursuant to the Act of 1927, March 31, P.L. 98, must be commenced by the timely filing of a petition for certiorari with the court of common pleas rather than by the filing of a notice of appeal. [258]
2. Strict compliance with statutory time and procedural appeal requirements is mandatory where the right of appeal is statutory, and the reviewing court acquires no jurisdiction to consider the matter in the absence of such compliance. [258-9]
Argued October 29, 1976, before Judges WILKINSON, JR., ROGERS and BLATT, sitting as a panel of three.
Appeal, No. 220 C.D. 1976, from the Order of the Court of Common Pleas of Allegheny County in case of King Productions, Inc., Lessee, and Oscar Bluestone, Owner v. Board of Adjustment of the City of Pittsburgh, No. S.A. 994 of 1975.
Request for occupancy permit denied by zoning officer. Applicants appealed to the Zoning Board of Adjustment of the City of Pittsburgh. Request denied. Applicants appealed to the Court of Common Pleas of Allegheny County. Motion to quash filed and sustained. FARINO, J. Applicants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Diane Evryl Reese, with her Harvey E. Robins, and Brennan, Robins Daley, for appellants.
D. R. Pellegrini, Assistant City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellees.
Appellants appeal from the decision of the Court of Common Pleas of Allegheny County quashing their appeal from the decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board). We affirm.
After a hearing, the Board on September 26, 1975, denied appellants' request for an occupancy permit and alternative parking. A "Notice of Appeal" was filed by the appellants on October 8, 1975. Appellees filed a motion to quash on October 31, 1975, which was granted by the court below on January 14, 1976.
Appeals from decisions of the Board must be taken in accordance with Section 7 of the Act of March 31, 1927, P.L. 98, as amended, 53 P. S. § 25057. The pertinent provisions read:
Any person or persons jointly or severally aggrieved by any decision of the board of adjustment . . . may present to the court of common pleas of the county wherein said city may be located, a petition duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within thirty (30) days after the filing of the decision in the office of the board.
Upon the presentation of such petition, the court may allow a writ of certiorari. . . .
The record shows that the appellants did not file a petition for a writ of certiorari within thirty days from the filing of the decision of the Board. Rather, they filed a "Notice of Appeal." Because of the failure to strictly comply with statutory requirements, the appeal must be quashed.
A "Notice of Appeal" is proper under Section 1008 of the "Pennsylvania Municipalities Planning Code," Act of July 31, 1968, P.L. 805, as amended, 53 P. S. § 11008. The Code is not applicable to second class cities, however.
It is important to note that appellants did not file a motion to amend the "Notice of Appeal" to supply it with an affidavit, and to then present it to the court as timely filed.
[W]here the right to appeal is statutory the appellant 'must act in strict accord with . . . the governing legislation.' [Citations omitted.]
Pittsburgh v. Public Utility Commission Duquesne Light Co., 3 Pa. Commw. 546, 551, 284 A.2d 808, 810 (1971).
This is because:
The timeliness of an appeal and compliance with statutory provisions which grant the right of appeal go to the jurisdiction of our court and its competency to act.
Commonwealth v. Bey, 437 Pa. 134, 136, 262 A.2d 144, 145 (1970).
Appellants rely on Christiansen v. Zoning Board of Adjustment, 1 Pa. Commw. 32, 271 A.2d 889 (1970). That case, however, has been "limited to its peculiar factual situation." Pittsburgh, supra, at 553, 284 A.2d at 811. There, upon timely oral application, a writ was issued. A written petition was not filed within the prescribed time because of the assurances of a court officer that the written petition could follow the appeal time. This action was sufficient to bring the case within the rule of Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938) (fraud or some breakdown of the court's operations through a default of its officers). Appellants cannot invoke this rule, so their appeal must be quashed.
Therefore, we enter the following
ORDER
NOW, December 1, 1976, the order of the Court of Common Pleas of Allegheny County, dated January 14, 1976, quashing appellants' appeal is affirmed.