Appeal from the Order of the Court of Common Pleas of Northumberland County in the case of Atlantic Richfield Company v. City of Bethlehem and Stephen L. Chanitz, Zoning Officer, No. 1980-6898.
Lewis R. Long, for appellant.
Richard F. Boyer, for appellees.
President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
Atlantic Richfield Company (Arco) has appealed to us from an order of the Court of Common Pleas of Northampton County which sustained a preliminary objection "concerning res judicata" and dismissed Arco's complaint in mandamus. Judgment was entered in favor of the "defendants."*fn1
Before the merits of this matter can be addressed, it is necessary to review the rather tortured procedural history of this case.
In 1978, Arco, through a named individual identified as its agent, applied for a special exception to expand its lawful nonconforming use of its property as a service station to include a "mini-market". It also requested a variance from the set-back provisions of the zoning ordinance for the construction of some canopies. The application was rejected by the zoning officer whose action was affirmed by the zoning hearing board of the City of Bethlehem (Board) after a full and complete hearing. Arco did not appeal from that action by the Board.
In June of 1980, Arco filed another application which appears to be similar to the one previously filed in 1978. Again the zoning officer rejected the application and again Arco appealed to the Board. A time was fixed for a hearing but before the hearing commenced, apparently on the advice of the assistant solicitor for the City of Bethlehem (City), the Board refused to take any testimony and informed Arco that it was denying the application upon the "principle of res judicata."
No appeal from that decision was taken to the trial court but fifteen days after the Board announced its
decision, Arco commenced an action in mandamus against the Defendants. The complaint set forth as its principal grounds for relief that the assistant city solicitor improperly rendered advice to the Board when he was counsel for the City, that the Board acted improperly when it refused to hold a hearing on the second application and that Mr. Chanitz, the zoning officer, unlawfully withheld his approval of the application.
The Defendants filed preliminary objections to the complaint raising the question of jurisdiction of the court, a demurrer and a charge that Arco had failed to include a necessary and indispensable party, i.e., the Board. In its brief in support of its preliminary objections, the Defendants pointed to Section 1001 of the Pennsylvania Municipalities Planning Code (MPC), Act of July 21, 1968, P.L. 805, as amended, 53 P.S. § 11001 which states that the proceedings set forth in Article X of the MPC "shall constitute the exclusive mode for securing review" of decisions of a zoning hearing board which is an agency of a municipality. Defendants also pointed out in their brief, that under Section 913 of the MPC, 53 P.S. § 10913, the Board and not the zoning officer must decide whether applications for special exceptions should be ...