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NATIONAL DEVELOPMENT CORPORATION v. PLANNING COMMISSION TOWNSHIP HARRISON (01/26/82)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: January 26, 1982.

NATIONAL DEVELOPMENT CORPORATION, APPELLANT
v.
PLANNING COMMISSION OF THE TOWNSHIP OF HARRISON, APPELLEE

Appeal from the Order of the Court of Common Pleas of Allegheny County in case of National Development Corporation v. Planning Commission of the Township of Harrison, No. SA 379 of 1980.

COUNSEL

Joel P. Aaronson, Baskin and Sears, for appellants.

Jon Hogue, Titus, Marcus & Shapira, with him John M. Means, Markel, Levenson, Schafer & Means, for appellee.

Judges Mencer, Williams, Jr. and Palladino, sitting as a panel of three. Opinion by Judge Williams, Jr. This decision was reached prior to the expiration of the term of office of Judge Palladino.

Author: Williams

[ 64 Pa. Commw. Page 247]

This is an appeal by appellant National Development Corporation (NADCO) from an order of the Court of Common Pleas of Allegheny County. The court's order dismissed NADCO's appeal, filed pursuant to the Pennsylvania Municipalities Planning Code (MPC),*fn1 from a decision of the Harrison Township Planning Commission (appellee).

On November 13, 1979 NADCO submitted to the Planning Commission an application for preliminary approval of a proposed subdivision and land development plan. The Planning Commission rendered a decision rejecting the application on March 17, 1980, and NADCO was notified of this decision by letter of the same date.

[ 64 Pa. Commw. Page 248]

On March 27, 1980 NADCO instituted an action in mandamus in the Court of Common Pleas of Allegheny County. In its complaint, appellant alleged that the Planning Commission had failed to act upon its application within the time period prescribed by Section 508 of the MPC,*fn2 and that therefore, its application was deemed approved thereunder. Appellant

[ 64 Pa. Commw. Page 249]

    accordingly requested the court below to declare its application preliminarily approved as a matter of law, or, in the alternative, to direct the Planning Commission to grant such preliminary approval.*fn3

In addition to the action in mandamus, NADCO filed, in the court below, on May 1, 1980, a statutory zoning appeal from the Planning Commission's decision under Section 1006 of the MPC.*fn4 As in the mandamus action, appellant sought recognition and enforcement of the deemed approval of its application.

Subsequent to the initiation of the mandamus action and the filing of its statutory appeal, NADCO filed a motion for peremptory judgment in mandamus. Following oral argument and upon consideration of the briefs of counsel, the lower court granted NADCO's petition and directed appellee to approve

[ 64 Pa. Commw. Page 250]

NADCO's application by order dated July 22, 1980. Thereafter, appellee filed a petition to open the peremptory judgment entered in NADCO's favor.*fn5 As of this date, appellee's petition has not been acted upon by the court below. On January 16, 1981, without notice or hearing, the court sua sponte entered an order dismissing appellant's zoning appeal. In its order, the court stated, as grounds for the dismissal, that its disposition of the mandamus action rendered moot NADCO's statutory appeal. NADCO has appealed to this court from the aforesaid order.

Preliminarily, we observe that the lower court incorrectly dismissed NADCO's statutory appeal as moot. While it is well established that a legal question can, after suit has been commenced, become moot as a result of changes in the facts of the case or in the law, such changes must finally and conclusively dispose of the controversy. See, In re Gross, 476 Pa. 203, 382 A.2d 116 (1978). Here, the issue involved in both the mandamus action and the statutory appeal is whether NADCO is entitled to preliminary approval of its application as a matter of law. The lower court's disposition of this question in appellant's mandamus action, however, is not final and conclusive: appellee's petition to open the peremptory judgment entered in that matter has not yet been acted upon by that court. Accordingly, NADCO's statutory appeal did not become moot as a result of the lower court's decision in the mandamus action.

The record before us, however, presents the question of whether NADCO's zoning appeal was timely

[ 64 Pa. Commw. Page 251]

    filed, and consequently, whether the court below had subject matter jurisdiction over that appeal.*fn6 Under Section 5571 of the Judicial Code,*fn7 an appeal from an order of a government unit to a court must be commenced within thirty (30) days after the entry of the order from which the appeal is taken. Section 5572 of the Judicial Code*fn8 provides that the date of mailing of an order of a government unit shall be deemed the date of entry of the order.*fn9

As aforesaid, the instant record indicates that the Planning Commission rendered its decision rejecting appellant's application on March 17, 1980, and notified NADCO of this decision in a letter bearing the same date. Appellant's statutory appeal from that decision was filed on May 1, 1980. The record is devoid, however, of any indication of the date on which the letter to NADCO was mailed. We are thus unable to determine whether NADCO's appeal under the MPC was timely filed. Accordingly, we are compelled to remand the case to the lower court for such a determination. In the event the court below determines that the statutory appeal was timely, the court should then decide the merits of that appeal.

[ 64 Pa. Commw. Page 252]

Order

And Now, the 26th day of January, 1982, the above-captioned case is hereby remanded to the Court of Common Pleas of Allegheny County.

This decision was reached prior to the expiration of the term of office of Judge Palladino.

Disposition

Case remanded.


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