Appeal from the decision of the Court of Common Pleas of Luzerne County, No. 1920, October Term, 1968, in case of Pantry Quik, Inc. v. Zoning Board of Adjustment of the City of Hazleton. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.
Edmund J. McCullough, for appellant.
Martin D. Cohn, with him Frank J. Gormley, Bart E. Ecker, and Laputka, Bayless, Ecker & Cohn, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Kramer. Concurring Opinion by Judge Crumlish, Jr. Dissenting Opinion by Judge Mencer.
This is an appeal from an Order of the Court of Common Pleas of Luzerne County by the Zoning Board of Adjustment (appellant) in which the appeal of Pantry Quik, Inc. (appellee) was sustained and the Board was directed to issue a zoning permit as had been requested by Pantry Quik for the construction of a grocery store in the city of Hazleton.
On July 29, 1969, Pantry Quik applied for a rear yard variance. This application was denied by the zoning administrator, and Pantry Quik appealed to the Zoning Board of Adjustment, which, after a hearing on September 3, 1969, denied Pantry Quik's request for a variance. No appeal in that matter was taken.
After redesigning its plan and relocating the proposed building, Pantry Quik on September 24, 1969, made an application for a zoning permit and requested the zoning administrator to issue a certification showing that the proposed construction would comply with the city zoning ordinance. This application was also denied, and Pantry Quik appealed that determination to the Zoning Board of Adjustment.
After hearing, the Board on November 1, 1969, affirmed the decision of the zoning administrator by a vote of 2 to 1. Pantry Quik appealed this adjudication to the Common Pleas Court of Luzerne County on November 12, 1969. The Common Pleas Court took additional testimony in the matter, but before a decision could be rendered, the hearing judge, Hon. Jacob Schiffman, died. Counsel for the City and Pantry Quik thereafter entered into a stipulation which reads in part as follows: ". . . that with the untimely death of Judge Jacob Schiffman, prior to rendering an adjudication in the above matter, it will not be necessary that another hearing be held on the matter for the purpose of taking testimony, and the appellant further agrees that the matter can be decided upon the record when transcribed."
The matter was then presented to another judge of the Court of Common Pleas, who on September 16, 1970, sustained the appeal of Pantry Quik and directed the Board to issue the zoning permit. The Board then filed its appeal in this Court from the Order of the court below.
The Board argues that the lower court committed an error in not affirming or replacing the findings of fact by the Board under the provisions of Section 1009 of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. (53 P.S. 11009). That section reads as follows: "If no verbatim record of testimony before the board was made, or if upon motion, it is shown that proper consideration of the zoning appeal requires the presentation of additional evidence a judge of the court may hold a hearing to receive such evidence or may remand the case to the board or refer to a referee to receive such evidence. Final decision of each zoning appeal shall be made by the court, or a judge thereof considering the record and the findings of fact made by the board as supplemented and replaced by findings of fact ...