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FOLTZ v. MONROEVILLE (05/03/72)

decided: May 3, 1972.

FOLTZ, JR.
v.
MONROEVILLE, ET AL., AND BORDEN, ET AL., INTERVENORS



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of James J. Foltz, Jr. v. Borough of Monroeville, Planning Commission of Borough of Monroeville, Zoning Officer Jack R. Norris and Borough Manager Carroll Pickens, No. 1797 April Term, 1971.

COUNSEL

Richard L. Rosenzweig, with him Rosenzweig & Rosenzweig, for appellants.

David W. Craig, with him Baskin, Boreman, Wilner, Sachs, Gondelman and Craig, for appellee.

Jerome M. Meyers, with him Meyers & Keyser, for intervenors.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Judge Rogers concurs in the result only.

Author: Crumlish

[ 5 Pa. Commw. Page 305]

The Borough of Monroeville, its Planning Commission, its Zoning Officer and its Borough Manager, defendants below, appeal to us the order of summary judgment in mandamus by the Court of Common Pleas of Allegheny County. Appellee, James Foltz, Jr., in mandamus sought to compel the issuance of building permits. Intervening appellants who are residents of the neighborhood where Foltz's proposed commercial

[ 5 Pa. Commw. Page 306]

    enterprise is to be constructed, appeared as protestants at the zoning hearings which preceded the litigation.

The Borough, its allies in the local government, and Intervenors raise three major questions in their appeal: (1) Is an action in mandamus whose prayer is to compel the issuance of permits based upon the 45-day rule of Municipalities Planning Code thwarted by a tardy decision by the municipality? (2) Does a statutory appeal from the tardy decision create an adequate remedy at law? and, (3) Does relief in mandamus based upon the 45-day rule, thus blocking protestants' appeal, violate their constitutional and statutory rights of due process?

The first two issues were very ably disposed of by the court below in the opinion of Judge Price, the relevant parts of which herein quoted, with the addition of a few explanatory footnotes of our own, we will adopt:

"Plaintiff has moved the court to grant a summary judgment in its favor in accordance with Pennsylvania Rules of Civil Procedure 1098. Following the filing of the complaint, defendants brought preliminary objections thereto challenging the propriety of plaintiff's action. Plaintiff thereafter filed an affidavit in support of its motion for summary judgment, and defendant filed an answer to plaintiff's motion.

"On October 7, 1970, plaintiff made application for a building permit which was denied by defendant Zoning Officer Jack R. Norris. Thereafter, plaintiff appealed to the Zoning Board of Monroeville, which Board held hearings on October 20, 1970, November 24, 1970, and December 10, 1970. On January 26, 1971, forty-six (46) days after the last hearing, the Board adopted a resolution denying plaintiff's application, a copy of which was mailed to plaintiff on ...


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