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TAGED v. ZONING BOARD ADJUSTMENT AND SHIELDS (09/21/72)

decided: September 21, 1972.

TAGED, INCORPORATED, ET AL.
v.
ZONING BOARD OF ADJUSTMENT AND SHIELDS, ET UX., INTERVENORS



Appeals from the Order of the Court of Common Pleas of Allegheny County in case of Taged, Incorporated, a corporation and Thomas G. Zaimes, an individual, v. The Zoning Board of Adjustment of the Borough of Monroeville and Edward Shields and Rose Shields, his wife, Intervenors, No. SA 69 of 1969.

COUNSEL

Leonard M. Mendelson, with him David J. Millstein and Hollinshead & Mendelson, for appellants.

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

Sheldon L. Keyser, with him Jerome M. Meyers and Meyers & Keyser, for intervenors.

Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. President Judge Bowman did not participate. Opinion by Judge Mencer.

Author: Mencer

[ 6 Pa. Commw. Page 333]

This appeal stems from our decision in Taged, Inc. v. Zoning Board of Adjustment of Monroeville, 2 Pa. Commonwealth Ct. 52, 276 A.2d 845 (1971), wherein we sustained the appeal of the present appellants who had been unsuccessful in their attempts to gain a special exception from the Zoning Board of Adjustment of the Borough of Monroeville (Board) and, on appeal, from the Court of Common Pleas of Allegheny County. In reversing on May 6, 1971, we vacated the order of the Board and remanded the matter to the lower court for action consistent with our opinion. We made no disposition as to costs.

On August 2, 1971, the Supreme Court denied appellees' Petition for Allowance of Appeal. Four days later, on August 6, 1971, in compliance with our order,

[ 6 Pa. Commw. Page 334]

    the lower court ordered that appellants be granted a special exception. Thereafter appellants sought to file a bill of costs with the Prothonotary of the Court of Common Pleas of Allegheny County and to have the record costs taxed against the Borough of Monroeville, appellee, and Edward D. Shields, and Rose J. Shields, his wife, intervening appellees. Because the Prothonotary resisted these efforts,*fn1 appellants, on August 23, 1971, presented a petition to the lower court for allowance of record costs as against the Board and the intervenors. On February 4, 1972, the lower court dismissed without prejudice appellants' petition. Appellants then filed on February 23, 1972, a separate appeal in this court at No. 209 Commonwealth Docket 1972.*fn2

Appellants rely on the Act of April 15, 1907, P.L. 83, § 1, 12 P.S. § 1193, and on the Act of June 5, 1913, P.L. 422, § 1, 12 P.S. § 1195, both acts having been most recently amended by the Act of June 3, 1971, P.L. , No. 6, § 1, which, inter alia, amended Section 509 ("Repeals and Savings Provisions") of the Appellate Court Jurisdiction

[ 6 Pa. Commw. Page 335]

Act of 1970 (ACJA), Act of July 31, 1970, P.L. 673, No. 223, 17 P.S. § 211.509(a)(48) and (58).*fn3 A comparison of the wording of §§ 1193 and 1195, before and after amendment, will reveal that only the words referring to the Supreme Court and to the Superior Court were omitted in each instance so as to include by omission the Commonwealth Court and ...


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