Thomas F. Halloran, Robert J. Winchester, Asst. Attys. Gen., Pittsburgh, for appellants.
Timothy P. O'Reilly, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Packel, J., did not participate in the decision of this case. Eagen, C. J., concurs in the result. Pomeroy, J., joins in this opinion and files a concurring opinion. Manderino, J., joins this opinion and the concurring opinion of Pomeroy, J.
On May 18, 1977, the Commonwealth Court granted appellee Township of South Fayette a preliminary injunction ordering appellant Commonwealth of Pennsylvania to cease operating the Oakdale Intensive Treatment Unit (Oakdale ITU) for juveniles adjudged delinquent. Oakdale ITU is located on a four-acre parcel owned by the Commonwealth within South Fayette Township. The Commonwealth Court, based on City of Pittsburgh v. Commonwealth, 468 Pa. 174, 360 A.2d 607 (1976), determined that the Commonwealth's operation of Oakdale ITU violated the South Fayette Township zoning ordinance*fn1 and that issuance of a preliminary injunction was therefore required. The Commonwealth contends South Fayette Township was not entitled to the preliminary injunction. We agree and vacate.*fn2
On May 20, 1977, two days after the preliminary injunction was granted, the Commonwealth filed in the Commonwealth Court notice of appeal from the Commonwealth
Court's decree*fn3 and applied for supersedeas. The Commonwealth Court granted supersedeas on May 23, 1977. The Commonwealth did not file concurrent notice of appeal in this Court*fn4 until June 30, 1977. This was after South Fayette Township had, on June 24, filed a motion to dismiss the appeal pursuant to Pa.R.A.P. 1971.*fn5 This Court directed that argument on South Fayette Township's motion to dismiss the appeal be heard together with the Commonwealth's appeal from issuance of the preliminary injunction.
I. SOUTH FAYETTE TOWNSHIP'S MOTION TO DISMISS APPEAL
South Fayette Township argues the Commonwealth's appeal should be dismissed under Pa.R.A.P. 1971 because when the Commonwealth filed a timely notice of appeal in the Commonwealth Court, it failed to file concurrent notice with this Court as required by Pa.R.A.P. 907. The Commonwealth admits it inadvertently failed to comply with Rule 907, but contends that dismissal under Pa.R.A.P. 1971 is discretionary and that South Fayette Township has not suffered any harm from this error. We agree.
Within days of learning of its error, the Commonwealth filed notice of appeal in this Court. The case was immediately set for argument during the next session of this Court, and both parties promptly filed records and briefs. South Fayette Township has failed to show that the Commonwealth's failure to file concurrent ...