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APPEAL JAMES J. FOLTZ (01/08/76)

decided: January 8, 1976.

APPEAL OF JAMES J. FOLTZ, JR. FROM ZONING HEARING BOARD OF BOROUGH OF MONROEVILLE. HENRY J. BORDEN, ET AL., APPELLANTS


Appeal from the Order of the Court of Common Pleas of Allegheny County in Case of Appeal of James J. Foltz, Jr., from Zoning Hearing Board of Borough of Monroeville, No. SA 145 of 1971.

COUNSEL

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

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

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

Author: Crumlish

[ 22 Pa. Commw. Page 563]

For a third time in the history of this complex litigation, this Court is visited with the opportunity to review a facet of landowner James J. Foltz, Jr.'s application for building permits to construct a shopping center in the Borough of Monroeville. In the two previous decisions*fn1

[ 22 Pa. Commw. Page 564]

    in this case, we exposed the facts underlying these appeals, but due to the complexity, we reluctantly review the relevant mile posts.

On October 8, 1970, Foltz appealed to the Zoning Hearing Board of the Borough of Monroeville (Board) when he was denied an application for building permits to construct a shopping center. That challenge was bottomed on procedural invalidity of the ordinance, and in the alternative requested a variance to develop commercially that portion of the property which was zoned residential. The Board's denial of that appeal, entered some forty-six days after its last hearing, was initially challenged in mandamus to compel issuance of the permits pursuant to Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 10908(9). In that Foltz decision, on appeal to us, we sustained Foltz's contention that the Board's decision, having been recorded beyond the statutory forty-five day limit was deemed favorable to the applicant.

In addition to the mandamus action in which Foltz was the ultimate victor, he had filed a precautionary zoning appeal (Foltz Appeal) from the "seemingly adverse" Board ruling. Protesting neighboring property owners, Henry J. Borden, et al., were there permitted to intervene as appellees. After achieving success in the mandamus action, Foltz endeavored to discontinue and withdraw his zoning appeal which was then pending in the Court of Common Pleas. Our second decision in this matter was a result of Foltz's appeal of the court below's striking of the discontinuance and withdrawal, and the allowance of the intervening protestants to continue as appellants in the zoning appeal. To add to the confusion, the protestants in Foltz Appeal filed their own appeal (Bordon Appeal) from the July 22, 1971 Board decision, after the court below had granted summary judgment in Foltz's mandamus proceeding. Foltz then intervened

[ 22 Pa. Commw. Page 565]

    as an appellee-applicant in that appeal and moved to quash the appeal because it had not been filed within thirty days of receipt of actual notice of the Board's deemed decision.

Our second decision quashed the Foltz appeal on the ground that he had failed to file the appeal within twenty days of the lower court's interlocutory order,*fn2 and further, we held that appeal to ...


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