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BOROUGH LIGONIER v. HOLY TRINITY HOUSING (02/16/82)

decided: February 16, 1982.

THE BOROUGH OF LIGONIER, APPELLANT
v.
HOLY TRINITY HOUSING, INC., APPELLEE



Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Holy Trinity Housing, Inc. v. The Borough of Ligonier, No. 12737 of 1979, Zoning Appeal.

COUNSEL

Robert P. Lightcap, McDonald, Moore & Mason, for appellant.

Joel P. Aaronson, Baskin & Sears, for appellee.

Judge Craig. Memorandum Opinion by Judge Craig.

Author: Craig

[ 64 Pa. Commw. Page 542]

This is, at least, the fifth case in this court from the Westmoreland County Court of Common Pleas presenting the same question: In statutory zoning appeal proceedings, for the purpose of computing the start of the thirty-day period during which an appeal to this court must be filed, which action of the common pleas court is final -- the decision and order of the single judge who heard the case, or a decision of the common pleas court en banc entered after argument upon exceptions?

Here, a judge of the common pleas court, on October 8, 1980, entered a decision holding Ligonier Borough's ordinance to be invalid and exclusionary in relation to an attack filed by Holy Trinity Housing, Inc. The borough filed exceptions on October 20, and, two months later, after serving a brief upon exceptions, also filed, on December 19, 1980, a praecipe to place argument of the exceptions on the next available court en banc argument list. Holy Trinity's subsequent motion to strike the borough's exceptions from the argument list was denied by two judges of the common pleas court, en banc, a third judge dissenting. After a further decision of the common pleas court en banc, which dismissed the exceptions, the borough filed its appeal to this court December 4, 1981.

We now have Holy Trinity's motion to quash that appeal, on the ground that it was not filed within

[ 64 Pa. Commw. Page 543]

    thirty days after the October 8, 1980 decision below, which Holy Trinity claims was the final decision from which any appeal had to be taken. Holy Trinity relies upon C.B. Company v. Rostraver Township Zoning Hearing Board, 49 Pa. Commonwealth Ct. 204, 410 A.2d 1298 (1980), in which both the Common Pleas Court of Westmoreland County and this court held that exceptions to a zoning decision in that county must be struck off because a single judge's decision is the final one from which the appeal is to be taken.

Because no statute or Rule of Civil Procedure expressly requires a decision upon exceptions in a zoning case, the most common practice statewide is that the hearing judge's decision is the final one. The only departures from that general rule have arisen where a local rule of court provides for exceptions leading to a decision by a court en banc.

In Cameron v. Board of Adjustment of the City of Greensburg, 1 Pa. Commonwealth Ct. 210, 274 A.2d 258 (1971), we refused to quash the appeal, in view of Westmoreland County's interpretation of its own practice pursuant to which that zoning case was finally decided by the lower court en banc. Then, in McKay v. North Huntington Township Board of Adjustment, 2 Pa. Commonwealth Ct. 609, 279 A.2d 376 (1971), the Westmoreland County Court of Common Pleas refused to consider exceptions in a zoning case, despite its own local Rule 504, which appeared to send all non-jury cases to the court en banc upon exceptions; we refused to quash the appeal, opting for consistency with the Cameron interpretation.

Thereafter, the Common Pleas Court of Westmoreland County replaced its Rule 504 with Rule W501, effective January 1, 1974. Accordingly, in M & E Enterprises, Inc. v. Township of Franklin, 17 Pa. Commonwealth Ct. 585, 333 A.2d 523 (1975), ...


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