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BIG BEAR OIL COMPANY v. ZONING BOARD ADJUSTMENT GREENVILLE (05/04/71)

decided: May 4, 1971.

BIG BEAR OIL COMPANY, A PENNSYLVANIA CORPORATION, APPELLANT,
v.
ZONING BOARD OF ADJUSTMENT OF GREENVILLE, PENNSYLVANIA, APPELLEE



Appeal from the Order of the Court of Common Pleas of Mercer County at No. 189 March Term, 1970, in case of Big Bear Oil Company v. Zoning Board of Adjustment of Greenville, Pa. Appeal transferred September 14, 1970, to the Commonwealth Court of Pennsylvania by the Supreme Court of Pennsylvania.

COUNSEL

Anthony Perfilio, with him Rodgers, Marks, Irwin & Perfilio, for appellant.

Samuel J. Orr, IV, with him Michael Halliday, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer, and Rogers. Opinion by Judge Mencer. Dissenting Opinion by Judge Manderino.

Author: Mencer

[ 2 Pa. Commw. Page 34]

On July 23, 1970, the Court of Common Pleas of Mercer County rendered a decision dismissing the appeal of Big Bear Oil Company (Big Bear) from the decision of the Zoning Board of Adjustment of Greenville, Pennsylvania. The decision of the lower court was in the form of an order dated July 23, 1970, dismissing Big Bear's appeal, with an allowance of exceptions to the court's ruling and an opinion in support of the order entered by the court. On the same day, July 23, 1970, the court's order and exceptions were docketed and entered of public record in the office of the Prothonotary of Mercer County.

On August 25, 1970, the attorney for Big Bear filed a praecipe with the Prothonotary requesting entry of judgment in favor of the Zoning Board of Adjustment of Greenville, Pennsylvania, in accordance with the opinion and order of the lower court entered July 23, 1970. Judgment was entered in accordance with the praecipe on August 26, 1970. On August 31, 1970, Big Bear took an appeal to the Supreme Court and there followed a motion to quash the appeal as untimely filed.

Under the authority of Section 507(b) of the Appellate Court Jurisdiction Act of July 31, 1970, P.L. , 17 P.S. §§ 211.101-211.510, this appeal and the motion to quash were transferred to the Commonwealth Court for hearing and disposition pursuant to Section 402(4) of the Appellate Court Jurisdiction Act of 1970.

[ 2 Pa. Commw. Page 35]

This appeal is subject to the provisions of the act known as the "Pennsylvania Municipalities Planning Code". Act of July 31, 1968, P.L. , No. 247, 53 P.S. § 10101 et seq. Article X, § 1012 of that Act, 53 P.S. § 11012, provides as follows: "Appeals from decisions of courts made under this act shall be taken to the Supreme Court of Pennsylvania in the manner provided for other civil cases, but no such appeal shall be entertained unless it is filed within thirty days after the date of entry of the decision of the lower court."

Since the decision of the lower court was entered on July 23, 1970, and Big Bear did not take its appeal until August 31, 1970, thirty-eight days after entry of the decision by the lower court, the motion to quash the appeal must be granted. Kravitz v. Zoning Board of Adjustment, 415 Pa. 97, 202 A.2d 64 (1964); Blank v. Board of Adjustment, 390 Pa. 636, 136 A.2d 695 (1957). This appeal was filed eight days beyond the statutorily prescribed time for taking an appeal. The timeliness of an appeal and compliance with the statutory provisions which grant the right of appeal go to the jurisdiction of a court and its competency to act. See Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965). Courts are without the power to enlarge or extend the time provided by statute for taking an appeal. Commonwealth v. Simon, 413 Pa. 609, 198 A.2d 583 (1964). The only exceptions to this rule are those involving fraud or a breakdown in a court's operation whereby a party has been injured or in a criminal case where the failure of a defendant to take an appeal within the period allowed has resulted from lack of counsel in violation of the defendant's constitutional rights. See Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); Commonwealth ex rel. Newsome v. Myers, 422 Pa. 240, 220 A.2d 886 (1966).

Big Bear contends that the appeal period should commence on August 26, 1970, ...


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