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H. GREGG TAYLOR AND LOIS JEAN TAYLOR v. ZONING HEARING BOARD BOROUGH LINCOLN (10/26/79)

decided: October 26, 1979.

H. GREGG TAYLOR AND LOIS JEAN TAYLOR, HIS WIFE, APPELLANTS
v.
ZONING HEARING BOARD OF THE BOROUGH OF LINCOLN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of H. Gregg Taylor and Lois Jean Taylor, his wife v. Zoning Hearing Board of the Borough of Lincoln, No. SA 1060 of 1977.

COUNSEL

Mord C. Taylor, Jr., with him Nescott and Taylor, for appellants.

Stephen Israel, for appellee.

Judges Crumlish, Jr., Mencer and Craig, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 46 Pa. Commw. Page 645]

In this zoning appeal, appellants, as objectors to the granting of a variance by the Lincoln Borough Zoning Hearing Board, ask us to reverse the order of the Allegheny County Court of Common Pleas which dismissed objectors' appeal; the dismissal order sustained preliminary objections which averred (1) a late filing of objectors' appeal in the court below and (2) objectors' failure to give notice of that appeal to the landowner recipient of the variance.

We reverse and remand.

The issue of the untimely filing of the zoning appeal in the court below arises from Section 1006 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. ยง 11006, which provides, in subsection (3)(b) that zoning appeals to court are to be taken "by appeal filed within thirty days after notice of the decision is issued."

In Zimmer v. Susquehanna County Planning Commission, 14 Pa. Commonwealth Ct. 435, 322 A.2d 420 (1974), this court interpreted that section to conclude that a decision is "issued" when it is sent out, that is, mailed.

A variation on the theme arises from the facts of this case because, after the zoning hearing board decided to grant the variance, the board secretary addressed a notice to objectors and placed it in her rural mailbox on November 16, 1977, to be picked up by the postal carrier, according to the custom of rural private mailboxes. The envelope was postmarked November 25, 1977. Objectors' appeal was filed on December 23 of that year.

[ 46 Pa. Commw. Page 646]

Applying Zimmer, we conclude that the filing of the appeal was timely because it was within thirty days of the postmark date which, in these circumstances, serve as the only workable indication of when the notice was sent out. To hold, as the appellee board seeks, that the appeal time started when the board secretary placed the notice in her own mailbox on November 16, with no evidence that the notice began its official mail journey any earlier than nine days thereafter, enlarges too much the semi-official status of a private rural mailbox. It is not reasonable, we believe, to say that the notice was sent out while it may have sat within the control, and on the property, of the sender.

Moreover, reliance on the postmark is judicially appropriate, not only because it is a time-stamp affixed by a disinterested official agency, but because it is the normal indication to the recipient as to when the notice was sent. Although we have declined to consider the date of receipt as the time of issuance, we nevertheless recognize the usefulness of the aggrieved party knowing the point from which the appeal time must be reckoned, as conveyed by the ...


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