Appeal from order of Court of Common Pleas of Delaware County, No. 9903 of 1966, in case of Humble Oil and Refining Company v. Borough of East Lansdowne.
William A. Welsh, for appellant.
Robert E. J. Curran, with him Kassab, Cherry, Curran and Archbold, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Justice Cohen dissents.
On March 3, 1966, the Humble Oil & Refining Company applied to the building inspector of East
Lansdowne for a building permit to erect a gasoline service station. The request was denied and the Humble Company appealed to the zoning board of adjustment, seeking a special exception, pursuant to the terms of § 5 (Business District A) of the zoning ordinance of the borough. A hearing on the appeal took place on May 24, 1966. A further hearing scheduled for May 31st was cancelled by the borough. On the latter date, the board held a meeting, at the termination of which, it instructed the secretary of the board to notify the borough solicitor to prepare an opinion and order denying the application. The opinion and order were eventually prepared and they were signed by the board on August 8, 1966. A copy was sent to the Humble Company on August 11th. This was the first notice the Company received that any definitive decision had been made by the board.
The Borough Code provides, inter alia: "If the board of adjustment does not make a decision within forty-five days after the hearing or continued hearing, it shall be deemed that such board has decided in favor of the person or the officer of the borough aggrieved or affected who is seeking relief,"*fn*
This 45-day period expired on July 16 if the calculation is made from May 31. It expired a week earlier if the calculation is made from May 24. On August 10 the Humble Company filed a complaint in mandamus to compel the borough to issue the building permit. After hearing, the court entered such an order, and the defendant borough has appealed.
The appellant contends that the action taken by the board on May 31st constituted a "decision" in contemplation of The Borough Code and that, therefore, the compulsory granting of an order was improvident. The
appellee contends, on the contrary, that there could not have been a "decision", as intended by the Act, until an opinion was filed ...