Appeal from the Order of the Court of Common Pleas of Bucks County in case of In Re: Appeal of Frederick J. Peruzzi from the Falls Township Zoning Hearing Board, No. 77-7285-05-5.
Mindy M. Brode, with her, David H. Moskowitz, Moskowitz & Zamparelli, for appellant.
Richard P. McBride, with him, Power, Bowen & Valimont, Leonard B. Sokolove, Sokolove, Pechter, Stief & Waite, for appellee.
Judges Crumlish, Jr., DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the expiration of the term of office of Judge DiSalle.
[ 48 Pa. Commw. Page 393]
The Township of Falls (Township) appeals to this Court from an order of the Court of Common Pleas of Bucks County granting Frederick J. Peruzzi (Peruzzi) recognition of a non-conforming use. Although variously stated by the parties, the sole issue before us is whether Peruzzi had perfected an appeal concerning the non-conforming use to the Court of Common Pleas and, accordingly, whether that Court could enter the order at issue here. For the reasons which follow, we hold that Peruzzi had perfected his appeal and we affirm the Court's order.
The facts of this case are undisputed as they relate to this appeal. Peruzzi, upon being denied an occupancy permit for the purpose of using the property in question as a used car lot, requested a use
[ 48 Pa. Commw. Page 394]
variance from the Township's Zoning Hearing Board (Board). The application was later amended to include an application for recognition of a non-conforming use. Following two hearings, the Board denied the applications. Peruzzi appealed the denial of both the variance and the continuation of the non-conforming use to the Court of Common Pleas of Bucks County. Following a conference conducted pursuant to Bucks County Rule of Civil Procedure 27, the Court remanded the case to the Board. Upon rehearing the matter, the Board granted Peruzzi a conditional variance and affirmed the previous denial of the recognition of the non-conforming use. The Township appealed the grant of the variance to the Court of Common Pleas. Peruzzi filed "Exceptions to Decision and Order of the Zoning Hearing Board of December 8, 1977" challenging the denial of the continuation of the non-conforming use. The Township filed preliminary objections to Peruzzi's exceptions. The Court of Common Pleas, without taking additional testimony, entered an order reversing the Board's decision granting the variance. However, the Court's order recognized the continuation of the non-conforming use.
The Township's argument that the Court erred in recognizing the non-conforming use because that issue was not before the Court is two-pronged. The Township argues first that the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10101 et seq., establishes the exclusive method of appeal from an order of the Board. The Township contends that because the filing of exceptions is not one of the appellate procedures authorized by the MPC, Peruzzi's exceptions could not serve to preserve the non-conforming use issue for consideration by the Court. The Township's
[ 48 Pa. Commw. Page 395]
second argument is that Peruzzi's initial appeal on the non-conforming use issue was mooted when the Court remanded the proceedings to the Board and his failure to raise the issue by way of proper appeal after the Board's second decision prevents the Court from considering the question.
The Township's argument that the MPC provides the exclusive remedy for challenging a decision of the Board is correct. In Re: Appeal of Gilbert, 34 Pa. Commonwealth Ct. 299, 307-08, 383 A.2d 556, 559-60 (1978); Appeal of Cibula v. Bradford Township, 25 Pa. Commonwealth Ct. 333, 335, 360 A.2d 812, 813 (1976). Contrary to ...