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LEONARD E. LYONS AND ETHEL M. LYONS v. ZONING BOARD ADJUSTMENT CITY ERIE (07/08/75)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 8, 1975.

LEONARD E. LYONS AND ETHEL M. LYONS, HIS WIFE,
v.
THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF ERIE, ERIE, PA. V. FIRST ALLEGHENY CONSTRUCTION AND DEVELOPMENT CORPORATION. LEONARD E. LYONS AND ETHEL M. LYONS, APPELLANTS

Appeal from the Order of the Court of Common Pleas of Erie County in case of Leonard E. Lyons and Ethel M. Lyons, his wife, v. The Zoning Board of Adjustment of the City of Erie, Erie, Pa., and First Allegheny Construction and Development Corporation, No. 2142 A 1972.

COUNSEL

Eugene J. Brew, with him Dale and Brew, for appellants.

Lawrence L. Kinter, Deputy City Solicitor, for appellee, Zoning Board of Adjustment.

Robert H. Chase, for appellee, First Allegheny Construction and Development Corporation.

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

Author: Mencer

[ 20 Pa. Commw. Page 166]

In this zoning case, First Allegheny Construction and Development Corporation (Allegheny) applied for a variance to the building line requirements of the Zoning Ordinance of the City of Erie. On July 11, 1972, the Zoning Board of Adjustment of the City of Erie (Zoning Board) granted the variance in favor of Allegheny. Leonard E. Lyons and Ethel M. Lyons (appellants) are the owners of property adjacent to the property of Allegheny which received the variance.

Appellants were notified by their attorney of the decision of the Zoning Board and were informed that they had thirty days to appeal to the court of Common Pleas of Erie County.*fn1 On August 9, 1972, appellants

[ 20 Pa. Commw. Page 167]

    mailed a letter by certified mail to the "Court of Common Pleas, Erie County Court House." The letter was received and signed for by the Deputy Prothonotary of Erie County on August 9, 1972, but it was apparently misplaced and there is no record in the Prothonotary's office of this letter:*fn2

On August 15, 1972, an appeal from the Zoning Board's decision of July 11, 1972 was filed on behalf of appellants by their then attorney.*fn3

Allegheny filed a motion to dismiss the appeal, and the Court of Common Pleas granted this motion and dismissed the appeal by order dated September 5, 1974. This appeal followed and we affirm.*fn4

Section 1008(1) of the Pennsylvania Municipalities Planning Code, 53 P.S. ยง 11008(1), provides in pertinent part that "[z]oning appeals shall be entered as of course

[ 20 Pa. Commw. Page 168]

    by the prothonotary or clerk upon the filing of a zoning appeal notice which concisely sets forth the grounds on which the appellant relies." (Emphasis added.) We held in Kreitz v. Zoning Board of Adjustment, 4 Pa. Commonwealth Ct. 602, 287 A.2d 884 (1972), that a failure, as in the instant case, to specify any ground for appeal warrants dismissal of the appeal.

While we regret that appellants have lost for themselves their "day in court," we must recognize the Kreitz is controlling here since appellants' letter of August 9, 1972 totally failed to set forth, concisely or otherwise, the grounds on which appellants relied for their zoning appeal.

Order affirmed.

Disposition

Affirmed.


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