Opinion
Argued May 7, 1975
July 8, 1975.
Zoning — Timeliness of appeal — Specificity of grounds for appeal — Dismissal of appeal — Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805.
1. Under the Pennsylvania Municipalities Planning Code, Act 1968, July 31, P.L. 805, an appeal from an action of a zoning board to a court of common pleas must be filed within thirty days after notice of the decision is issued, and if such appeal does not concisely set forth the grounds upon which the appellant relies it is subject to dismissal. [166-7-8]
Argued May 7, 1975, before President Judge BOWMAN and Judges CRUMLISH, JR., KRAMER, WILKINSON, JR., MENCER, ROGERS and BLATT.
Appeal, No. 1289 C. D. 1974, from the Order of the Court of Common Pleas of Erie County in case of Leonard E. Lyons and Ethel M. Lyons, his wife, v. The Zoning Board of Adjustment of the City of Erie, Erie, Pa., and First Allegheny Construction and Development Corporation, No. 2142 A 1972.
Application to Zoning Board of Adjustment of the City of Erie for variance. Application granted. Protestants appealed to the Court of Common Pleas of Erie County. Motion to dismiss appeal filed by defendants. Appeal dismissed. CARNEY, P. J. Protestants appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Eugene J. Brew, with him Dale and Brew, for appellants.
Lawrence L. Kinter, Deputy City Solicitor, for appellee, Zoning Board of Adjustment.
Robert H. Chase, for appellee, First Allegheny Construction and Development Corporation.
In this zoning case, First Allegheny Construction and Development Corporation (Allegheny) applied for a variance to the building line requirements of the Zoning Ordinance of the City of Erie. On July 11, 1972, the Zoning Board of Adjustment of the City of Erie (Zoning Board) granted the variance in favor of Allegheny. Leonard E. Lyons and Ethel M. Lyons (appellants) are the owners of property adjacent to the property of Allegheny which received the variance.
Appellants were notified by their attorney of the decision of the Zoning Board and were informed that they had thirty days to appeal to the court of Common Pleas of Erie County. On August 9, 1972, appellants mailed a letter by certified mail to the "Court of Common Pleas, Erie County Court House." The letter was received and signed for by the Deputy Prothonotary of Erie County on August 9, 1972, but it was apparently misplaced and there is no record in the Prothonotary's office of this letter:
An appeal from a decision of a zoning board to a court of common pleas must be taken not later than thirty days after notice of the decision is issued. Section 1007 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P. L. 805, added by the Act of June 1, 1972, P. L. 333, § 19, 53 P. S. § 11007. See Zimmer v. Susquehanna County Planning Commission, 14 Pa. Commw. 435, 322 A.2d 420 (1974).
The letter sent by appellants read as follows:
"July 9, 1972 [ sic]
"Erie County Court House Court of Common Pleas
Dear Sir
Mr Mrs Leonard Lyons of 216 Parkway wish to appeal the zoning variance granted to Alleghany Const. Co. on July 11, 192 [ sic] to build a Turn Key House at 214 Parkway Dr.
Please let us hear from you as soon as possible.
Thank you Mr Leonard Lyons"
On August 15, 1972, an appeal from the Zoning Board's decision of July 11, 1972 was filed on behalf of appellants by their then attorney.
Appellants changed attorneys between July 11, 1972 and August 15, 1972.
Allegheny filed a motion to dismiss the appeal, and the Court of Common Pleas granted this motion and dismissed the appeal by order dated September 5, 1974. This appeal followed and we affirm.
Appellants do not contend that the lower court was in error in determining that their appeal of August 15, 1972 was untimely but only assert here that they properly filed their appeal within the thirty-day appeal period by way of the letter mailed to the lower court on August 9, 1972.
Section 1008(1) of the Pennsylvania Municipalities Planning Code, 53 P. S. § 11008(1), provides in pertinent part that "[z]oning appeals shall be entered as of course by the prothonotary or clerk upon the filing of a zoning appeal notice which concisely sets forth the grounds on which the appellant relies." (Emphasis added.) We held in Kreitz v. Zoning Board of Adjustment, 4 Pa. Commw. 602, 287 A.2d 884 (1972), that a failure, as in the instant case, to specify any ground for appeal warrants dismissal of the appeal.
While we regret that appellants have lost for themselves their "day in court," we must recognize the Kreitz is controlling here since appellants' letter of August 9, 1972 totally failed to set forth, concisely or otherwise, the grounds on which appellants relied for their zoning appeal.
Order affirmed.