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HOWARD HANNA v. ZONING BOARD ADJUSTMENT PITTSBURGH (11/25/81)

decided: November 25, 1981.

HOWARD HANNA, III, APPELLANT
v.
ZONING BOARD OF ADJUSTMENT OF PITTSBURGH, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Howard Hanna, III v. Zoning Board of Adjustment of Pittsburgh, No. SA 50 of 1981.

COUNSEL

Patricia McCommon, Nernberg & Laffey, for appellant.

D. R. Pellegrini, Deputy City Solicitor, with him Mead J. Mulvihill, Jr., City Solicitor, for appellee.

Judges Mencer, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. Judge Williams, Jr. dissents.

Author: Macphail

[ 62 Pa. Commw. Page 621]

Howard W. Hanna, III (Appellant) appeals from an order of the Court of Common Pleas of Allegheny County which quashed his appeal from a decision of the Zoning Board of Adjustment of Pittsburgh (Board) as untimely filed.

The basis for Appellant's appeal to the court below was the denial of his application for a variance*fn1 by the Board in a decision dated December 4, 1980. The decision was mailed to Appellant along with a transmittal letter which was also dated December 4, 1980. Appellant filed an appeal with the common pleas court on January 13, 1981, alleging therein that he received notice of the Board's decision "on or about December 14, 1980."*fn2 Recognizing the possibility that the appeal

[ 62 Pa. Commw. Page 622]

    had been filed beyond the applicable 30-day appeal period, the court below, sua sponte,*fn3 issued a rule to show cause why the appeal should not be quashed. Although the trial court ordered a hearing on the rule, there is nothing in the record which indicates that any testimony or other evidence was received. The order of the trial judge quashing the appeal states that counsel for the Appellant advised the court that Appellant could not produce any credible evidence to establish that the Board's decision was sent on or after December 17, 1980*fn4 nor could Appellant prove when he received the decision.

The appeal period in the instant case is governed by Section 5571(b) of the Judicial Code, 42 Pa. C.S. § 5571(b), which provides:

Other courts -- Except as otherwise provided . . . an appeal from a tribunal or other government unit to a court or from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken. . . .

Also pertinent is Section 5572 of the Judicial Code, 42 Pa. C.S. § 5572, which states:

The date of service of an order of a government unit, which shall be the date of mailing if service is by mail, shall be deemed to be the date of entry of the order for the ...


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