Appeal from the order of the Court of Common Pleas of Delaware County, No. 13554 of 1968, in case of Robert Louis Corporation v. Board of Adjustment of Radnor Township. Transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.
Sondra K. Slade, with her Fronefield Crawford, Township Solicitor, for appellant.
John R. Graham, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Barbieri (who has since been appointed to the Supreme Court of Pennsylvania and did not participate in the decision). Opinion by Judge Mencer.
The Board of Commissioners of Radnor Township, Delaware County, on June 24, 1968, enacted Ordinance 1366, rezoning a 110-acre area, including four acres owned by Robert Louis Corporation, appellee, from R-3 to R-2. The effect of this ordinance was to increase, in the area rezoned, the minimum lot area from 10,000 square feet to 20,000 square feet; the lot width from
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to 100 feet; the front yard from 35 to 40 feet, and the side yards from 15 to 20 feet. On July 25, 1968, appellee applied for a zoning use permit to allow occupancy of 10,000 square foot lots on its four-acre tract. The building inspector refused to issue the permit and appellee appealed to the Board of Adjustment, challenging the constitutionality of Ordinance 1366. The Board of Adjustment made findings of fact, found the ordinance valid and dismissed the appeal. Appellee on October 22, 1968, took an appeal to the Court of Common Pleas of Delaware County which, without taking any additional testimony, rendered a decision on August 8, 1969, that the ordinance in question was unconstitutional, illegal and void insofar as it classifies appellee's property in an R-2 zone, and accordingly reversed the Board of Adjustment. Thereafter, on October 7, 1969, the Township of Radnor, appellant, filed a direct appeal to the Supreme Court of Pennsylvania and on the same day filed a petition for leave to file nunc pro tunc a petition for certiorari under Supreme Court Rule 68 1/2.
It was proper for the Township of Radnor to assume the position of appellant since the Board of Adjustment had no right to appeal. See Yocum Zoning Case, 393 Pa. 148, 141 A.2d 601 (1958); Edwards Zoning Case, 392 Pa. 188, 140 A.2d 110 (1958); Lansdowne Borough Board of Adjustment's Appeal, 313 Pa. 523, 170 A. 867 (1934).
On October 14, 1969, appellee filed its motion to quash in which it asserted that the appeal filed sixty days from the date of decision was not timely under the provisions of Rule 68 1/2. Iron City Sand and Gravel Company v. Zoning Board of Adjustment, 418 Pa. 145, 208 A.2d 836 (1965). Appellant filed an answer to the motion to quash which asserted the applicability of Article V, § 9 of the Constitution of the Commonwealth
of Pennsylvania of 1968. The Supreme Court of Pennsylvania, on November 19, 1969, ordered that the motion to quash be heard at time of argument on the appeal. This appeal was transferred to our Court, in accordance with Section 507(b) of the Appellate Court Jurisdiction Act of 1970, 17 P.S. § 211.507(b).
Article V, § 9 of the Pennsylvania Constitution became effective on January 1, 1969, and states that: "There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an ...