Appeal from the Order of the Court of Common Pleas of Montgomery County in case of Appeal of William Farrell from Decision of Worcester Township Zoning Hearing Board, No. 80-22847.
Norman P. Zarwin, with him Charles L. Tannenbaum, Zarwin & Baum, P.C., for appellant.
Jerome B. Nulty, Clemens, Nulty and Gifford, for appellee.
President Judge Crumlish, Jr. and Judges Rogers and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.
William Farrell (Appellant) has appealed from an order of the Court of Common Pleas of Montgomery County which dismissed his appeal from a decision of the Worcester Township Zoning Hearing Board (Board) as untimely filed.
The subject of the zoning appeal in the court of common pleas was an order issued by the Board on November 25, 1980 which denied Appellant's application for a use permit.*fn1 Appellant's appeal from the Board's decision is time-stamped as having been received by the prothonotary on December 29, 1980. The parties agreed before the common pleas court that the last day on which the appeal could have been timely filed was Friday, December 26. Thus, the court found the appeal to be untimely and, accordingly, ordered that the case be dismissed. The common pleas court rejected Appellant's contention that his appeal was received by the prothonotary on or before December 26, but was time-stamped subsequent to its receipt due to an office slowdown over the Christmas holiday.
In the instant appeal, Appellant argues that the court of common pleas erred in finding his appeal to be untimely. Appellant contends that the date affixed by the prothonotary to his appeal notice is not conclusive proof of the date of filing and that record evidence shows, inter alia, that the prothonotary's office had a backlog of papers to be time-stamped over the Christmas holiday, that the appeal was mailed to the prothonotary on December 22, and that the appeal should, therefore, be deemed to have been timely filed.
The time allowed for an appeal to the common pleas court in the case is governed by Section 5571(b) of the Judicial Code (Code), 42 Pa. C.S. § 5571(b), which provides that:
[A]n appeal from a tribunal or other government unit to a court . . . must be commenced within 30 days after the entry of the order from which the appeal is taken. . . .
Section 5572 of the Code, 42 Pa. C.S. § 5572, establishes that the date on which the appeal period begins is the "date of service of an order of a government unit, which shall be the date of mailing if service is by mail." Although the parties apparently agreed before the common pleas court that the appeal period here ended on December 26, there is no indication in the record as to the date on which the board mailed its decision to Appellant. We note that Appellant stated in his brief filed with the common pleas court that "the date of mailing is unknown to Appellant." We have recently held that it is the Board's responsibility to provide notice to an applicant of the actual mailing date of its decision. Hanna v. Zoning Board of Adjustment of ...