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HARVEYS LAKE BOROUGH TAXPAYERS ASSOCIATION v. HARVEYS LAKE BOROUGH ZONING HEARING BOARD AND JAMES P. O'DONNELL (02/08/83)

decided: February 8, 1983.

HARVEYS LAKE BOROUGH TAXPAYERS ASSOCIATION, APPELLANT
v.
THE HARVEYS LAKE BOROUGH ZONING HEARING BOARD AND JAMES P. O'DONNELL, APPELLEES



Appeal from the Order of the Court of Common Pleas of Luzerne County in case of Harveys Lake Borough Taxpayers Association, a non-profit corporation v. The Harveys Lake Borough Zoning Hearing Board and James P. O'Donnell, No. 3876-C of 1980.

COUNSEL

James F. Geddes, Jr., Silverblatt and Townend, for appellant.

Donald T. Rogers, for intervenor/appellee, James P. O'Donnell.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 71 Pa. Commw. Page 632]

Harveys Lake Borough Taxpayers Association (Appellant) has appealed from an order of the Court of Common Pleas of Luzerne County which granted a petition to strike its appeal from a decision of the Harveys Lake Borough Zoning Hearing Board (Board).

The pleadings in this case reflect that a variance was issued by the Board on or about October 30, 1980 to James P. O'Donnell (Appellee) in response to his application to remodel, repair and expand a boathouse facility. Appellant appealed that decision to the court of common pleas alleging various grounds for reversal of the Board's action. The Appellant sought to have the appeal granted "class action" status. Appellee subsequently intervened in the proceedings and filed a petition to strike the appeal, which was answered by the Appellant. Based on the pleadings before it, the court of common pleas granted the petition to strike on two grounds: 1) that there is no right to a class action appeal from a zoning hearing board decision and 2) that the Appellant was not a "party aggrieved" within the meaning of the Pennsylvania Municipalities Planning Code (MPC)*fn1 and, therefore, lacked standing to appeal. Appellant subsequently perfected its appeal to this Court.*fn2

[ 71 Pa. Commw. Page 633]

The first issue presented for our consideration is whether the court of common pleas correctly concluded that there was no right to a class action appeal from the Board's decision. We think the court's conclusion was correct. As a rule, the right to assert class standing in an administrative proceeding should not be inferred in the absence of a specific rule or statute which confers and defines the right. Sullivan v. Insurance Department, 48 Pa. Commonwealth Ct. 11, 408 A.2d 1174 (1979). We have previously recognized that the MPC does not provide a procedure analogous to the class action suits permitted by the Pennsylvania Rules of Civil Procedure. Frank v. Zoning Hearing Board, 6 Pa. Commonwealth Ct. 462, 296 A.2d 300 (1972). Cf. Stevenson v. Department of Revenue, 489 Pa. 1, 413 A.2d 667 (1980) (class action suits are permitted before the Board of Claims pursuant to rules of practice and procedure promulgated by that administrative board); Pennsylvania Human Relations Commission v. Freeport Area School District, 467 Pa. 522, 359 A.2d 724 (1976) (Section 9 of the Pennsylvania Human Relations Act, Act of October 27, 1955, P.L. 744, as amended, 43 P.S. § 959, authorizes class relief). We, accordingly, conclude that Appellant would not have been entitled to seek class action status before the Board. It follows, a fortiori, that Appellant also could not seek class action status for the first time on appeal to the court of common pleas. It might, nevertheless, be possible for the Appellant to proceed with its appeal, not as the representative of a class, but rather in its own right if it can establish standing as a "party aggrieved" by the Board's adverse decision.

This brings us to the second issue presented in this appeal, to wit, whether the court of common pleas erred in dismissing Appellant's appeal for lack of individual standing. Appellant specifically challenges the court's finding that "no timely appearance was ever

[ 71 Pa. Commw. Page 634]

    entered of record before the Board by or on behalf of the Association. . . ." If the court's finding is supported by the record, Appellant clearly would not possess the requisite standing to appeal to the court of common pleas.

Section 1007 of the MPC, 53 P.S. § 11007, which is the appeals provision applicable to this case,*fn3 provides in pertinent part that, "[a]ppeals to court from the decision of the zoning hearing board may be taken by any party aggrieved ". (Emphasis added.) Section ...


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