Appeal from the Order of the Court of Common Pleas of Berks County in case of Appeal of Bruce G. Crossley from the decision of the Zoning Hearing Board of the Township of Bern, Berks County, Pennsylvania, refusing the granting of a variance, No. 261 November Term, 1978.
Paul R. Ober, Erickson, Ober & Ober, with him Frederick O. Brubaker, for appellant.
Jonathan L. Wesner, with him Scott L. Huyett, for appellee.
Judges Blatt, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
[ 60 Pa. Commw. Page 352]
Bruce G. Crossley (Appellant) filed an application for a variance with the Zoning Hearing Board (Board) of the Township of Bern, Berks County. On October 5, 1978, the Board issued a timely decision after hearing, denying the request for a variance. On October 27, 1978, Appellant filed a notice of appeal of the Board's decision with the Court of Common Pleas of Berks County. The court prothonotary promptly acted upon Appellant's notice of appeal, in accordance with Section 1008(2) of the Pennsylvania Municipalities Planning Code, Act of July 31, 1968, P.L. 805, as amended, added by Act of June 1, 1972, P.L. 333, as amended, 53 P.S. § 11008(2), which provides:
Upon filing of a zoning appeal, the prothonotary or clerk shall forthwith as of course, send to the governing body, board or agency whose decision or action has been appealed, by registered or certified mail, the copy of the zoning appeal notice together with a writ of certiorari commanding said governing body, board or agency within twenty days after receipt thereof to certify to the court its entire record in the
[ 60 Pa. Commw. Page 353]
matter in which the zoning appeal has been taken, or a true and complete copy thereof, including any transcript of testimony in existence and available to the governing body, board or agency at the time it received the writ of certiorari.
On March 19, 1979, Appellant filed a "Petition to Sustain Appeal" with the lower court, for the reason that the Board had not answered the writ of certiorari by the filing of the record within the 142 days since the writ's issuance. The court issued a rule upon the Board to show cause why the appeal should not be granted for the delay. The Board filed an answer to the rule*fn1 and depositions followed. On August 28, 1979 (305 days subsequent to the writ's issuance), the Board did file the record of its proceedings with the court below. The court below dismissed the Appellant's "Petition to Sustain Appeal" after oral argument and discharged the Rule to Show Cause on March 13, 1980. On May 5, 1980, the court below dismissed Appellant's appeal on the merits.
Appellant has limited his appeal to us to the alleged error of the trial court when it did not grant his "Petition to Sustain Appeal." The resolution of that issue presents to us a question of statutory construction and one of first impression: whether or not the language of Section 1008(2) of the MPC, which directs the prothonotary to command the governing body, board, or agency, within twenty days after receipt of the writ to certify to the court its entire record in the matter appealed, is mandatory or merely directory.
[ 60 Pa. Commw. Page 354]
Appellant argues that the Board was mandated by Section 1008(2) of the MPC to certify its record within twenty days, that the Board delayed 305 days before filing the record, and that by virtue of ...