Opinion
February 16, 1982.
Zoning — Timeliness of appeal — Exceptions — Praecipe.
1. In view of the fact that no statute or Rule of Civil Procedure requires a decision upon exceptions by a court of common pleas in a zoning case, the time for appeal of a zoning decision to the Commonwealth Court of Pennsylvania, where no local rule provides for exceptions leading to a decision by a court en banc, runs from the single judge's decision which is final, and the filing of a praecipe or exceptions does not affect the finality of that decision or the date by which an appeal must be filed. [544]
Heard February 11, 1982 by Judge CRAIG.
Appeal, No. 3038 C.D. 1981, from the Order of the Court of Common Pleas of Westmoreland County in case of Holy Trinity Housing, Inc. v. The Borough of Ligonier, No. 12737 of 1979, Zoning Appeal.
Challenge to zoning ordinance and request for curative amendment denied by Borough of Ligonier. Challenger appealed to the Court of Common Pleas of Westmoreland County. Appeal sustained. Permit ordered issued. ACKERMAN, J. Exceptions filed. Motion to strike exceptions denied. Exceptions denied. Decision sustained by court en banc. Borough appealed to the Commonwealth Court of Pennsylvania. Challenger filed motion to quash appeal. Held: Motion granted. Appeal quashed.
Robert P. Lightcap, McDonald, Moore Mason, for appellant.
Joel P. Aaronson, Baskin Sears, for appellee.
This is, at least, the fifth case in this court from the Westmoreland County Court of Common Pleas presenting the same question: In statutory zoning appeal proceedings, for the purpose of computing the start of the thirty-day period during which an appeal to this court must be filed, which action of the common pleas court is final — the decision and order of the single judge who heard the case, or a decision of the common pleas court en banc entered after argument upon exceptions?
Here, a judge of the common pleas court, on October 8, 1980, entered a decision holding Ligonier Borough's ordinance to be invalid and exclusionary in relation to an attack filed by Holy Trinity Housing, Inc. The borough filed exceptions on October 20, and, two months later, after serving a brief upon exceptions, also filed, on December 19, 1980, a praecipe to place argument of the exceptions on the next available court en banc argument list. Holy Trinity's subsequent motion to strike the borough's exceptions from the argument list was denied by two judges of the common pleas court, en banc, a third judge dissenting. After a further decision of the common pleas court en banc, which dismissed the exceptions, the borough filed its appeal to this court December 4, 1981.
We now have Holy Trinity's motion to quash that appeal, on the ground that it was not filed within thirty days after the October 8, 1980 decision below, which Holy Trinity claims was the final decision from which any appeal had to be taken. Holy Trinity relies upon C. B. Company v. Rostraver Township Zoning Hearing Board, 49 Pa. Commw. 204, 410 A.2d 1298 (1980), in which both the Common Pleas Court of Westmoreland County and this court held that exceptions to a zoning decision in that county must be struck off because a single judge's decision is the final one from which the appeal is to be taken.
Because no statute or Rule of Civil Procedure expressly requires a decision upon exceptions in a zoning case, the most common practice statewide is that the hearing judge's decision is the final one. The only departures from that general rule have arisen where a local rule of court provides for exceptions leading to a decision by a court en banc.
In Cameron v. Board of Adjustment of the City of Greensburg, 1 Pa. Commw. 210, 274 A.2d 258 (1971), we refused to quash the appeal, in view of Westmoreland County's interpretation of its own practice pursuant to which that zoning case was finally decided by the lower court en banc. Then, in McKay v. North Huntington Township Board of Adjustment, 2 Pa. Commw. 609, 279 A.2d 376 (1971), the Westmoreland County Court of Common Pleas refused to consider exceptions in a zoning case, despite its own local Rule 504, which appeared to send all non-jury cases to the court en banc upon exceptions; we refused to quash the appeal, opting for consistency with the Cameron interpretation.
Thereafter, the Common Pleas Court of Westmoreland County replaced its Rule 504 with Rule W501, effective January 1, 1974. Accordingly, in M E Enterprises, Inc. v. Township of Franklin, 17 Pa. Commw. 585, 333 A.2d 523 (1975), concluding that there was no further local mandate for exceptions in zoning cases, we refused to quash an appeal from the hearing judge's decision.
Consistently, in C. B. Company, the common pleas court struck off exceptions in that zoning case, explicitly stating that, with the adoption of Rule W501, "the Common Pleas Court of Westmoreland County intended to disallow exceptions to be taken in zoning cases to the Court En Banc so that the decision of a single judge would be final" in zoning cases. Accordingly, in C. B. Company, recognizing the court below as the best authority for the interpretation of its own rules, we affirmed that court's rejection of exception proceedings.
But, in this case, we now have a majority opinion from the court below which appears to reverse its field and again allow exceptions in a zoning case. That opinion departs from the holdings of both courts in the C. B. Company case. Here the majority below notes a reference, in our C. B. Company opinion, to the possible significance of the filing of a praecipe; however, we mentioned the point only in connection with our rejection of an argument on that score. Where the common pleas court rule establishes the single judge's decision as the final one, the filing of a praecipe, whether immediately or (as here) later, cannot reach back to affect the finality of that decision. In Szura v. Zoning Hearing Board of Wyoming Borough, 40 Pa. Commw. 172, 397 A.2d 33 (1979), we sua sponte dismissed a zoning appeal because it had not been taken from the single judge's decision, concluding that, when the appeal time has expired, we lack jurisdiction to entertain an appeal.
We must agree with the dissenting opinion of Judge LOUGHRAN below, that, since the C. B. Company decision by this court (published early in 1980), "the procedure for zoning case appeals had become clear" in Westmoreland County. The procedural history of this case is parallel with that of the C. B. Company case in all essentials.
In the C. B. Company case we dealt with other arguments strongly renewed here, considering also the contention that the Westmoreland County local rules look to assumpsit procedure generally, including Pa. R.C.P. No. 1038, unless there are other provisions of the local rules indicating otherwise — such as Rule W501
This court cannot appropriately contribute to a renewal of the confusion which heretofore was eliminated by Westmoreland County's revision of its rules and its own interpretation, with which we agreed. Therefore, the motion to quash must be granted.
ORDER
NOW, February 16, 1982, the motion of appellee Holy Trinity Housing, Inc. to quash this appeal is granted.