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C.B. COMPANY v. ROSTRAVER TOWNSHIP ZONING HEARING BOARD. "KEEP OUR ZONING" (02/05/80)

decided: February 5, 1980.

C.B. COMPANY, A PARTNERSHIP CONSISTING OF DARIO CASTELLI, VICTOR CASTELLI AND JAMES CASTELLI, PARTNERS AND CONSOLIDATION COAL COMPANY, A CORPORATION
v.
ROSTRAVER TOWNSHIP ZONING HEARING BOARD. "KEEP OUR ZONING", APPELLANT



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of C.B. Company, a partnership consisting of Dario Castelli, Victor Castelli and James Castelli, partners, and Consolidation Coal Company, a corporation v. Rostraver Township Zoning Hearing Board, No. 3824 of 1978.

COUNSEL

Bradley W. Bassi, with him Melvin B. Bassi, Bassi and Rega, for appellant.

Bernard S. Shire, with him Lee P. Symons and Joseph E. Fieschko, Jr., for appellees.

Judges Wilkinson, Jr., Rogers and Craig, sitting as a panel of three. Opinion by Judge Craig. Judge DiSalle did not participate in the decision in this case.

Author: Craig

[ 49 Pa. Commw. Page 205]

Again we have the question of whether the 30-day time period for appealing to this court*fn1 in a zoning case must be computed from the date of the hearing judge's order, as the final order, or from the later action of a lower court en banc as the final order. And again the question comes to us from the Common Pleas Court of Westmoreland County.

The Zoning Hearing Board of Rostraver Township had denied a request by C.B. Company and Consolidation Coal Company for a variance to allow the reinstitution of coal mining on property in that township. An appeal by the coal companies to the common pleas court was heard by Judge McCormack, whose opinion and order allowed the intervention of the citizens' group (objectors) who are petitioners here, and also granted the variance by sustaining the appeal, under date of January 23, 1979.

[ 49 Pa. Commw. Page 206]

Objectors, on February 5, 1979, filed exceptions in the lower court. In response to a motion by counsel for the coal companies to strike the case from the argument list, the lower court issued an en banc order dated June 4, 1979, which removed the case from that list. Objectors filed their appeal in this court June 20, 1979, within thirty days after the court en banc decision below, but not within thirty days after the hearing judge's decision of January 23.

We have held that a zoning appeal in this court will be dismissed if not filed within 30 days after the decision of the single judge in the court below where the lower court has decided that the single-judge order is the final one and that exceptions before its court en banc are not permitted. Szura v. Zoning Hearing Board of Wyoming Borough, 40 Pa. Commonwealth Ct. 172, 397 A.2d 33 (1979). That is precisely what has happened here.

Objectors' chief argument is that the applicable Westmoreland County local rule is not clear. Adopted under the statutory power of common pleas courts to make binding rules, 42 Pa. C.S. ยง 323, the critical local rule is Westmoreland County Court of Common Pleas Rule W501, headed "Court en banc", which provides that argument lists shall automatically include, without praecipe, "all preliminary objections, motions for new trial, judgment non obstante veredicto, and judgment upon the whole record, motions to take off a non-suit, exception to a Master's reports and equity exceptions." Although that listing does not appear to embrace post-trial motions in zoning cases or other statutory appeals, objectors argue that reference to statutory appeals is absent.

Logically, we should defer to a lower court's interpretation of its own rules. In its opinion filed in this case, the court ...


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