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BOROUGH EDGEWORTH v. DONALD S. MACLEOD (02/16/83)

decided: February 16, 1983.

THE BOROUGH OF EDGEWORTH, APPELLANT
v.
DONALD S. MACLEOD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Allegheny County in the case of Donald S. MacLeod v. The Borough of Edgeworth, No. SA 829 of 1981.

COUNSEL

Richard DiSalle, with him Robert Y. Kopf, Jr., Edward C. Schmidt, and Templeton Smith, Jr., for appellant.

David L. Nixon, Hollinshead and Mendelson, for appellee.

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

Author: Macphail

[ 72 Pa. Commw. Page 123]

The Borough of Edgeworth (Borough) has filed this appeal from an order of the Court of Common Pleas of Allegheny County. That order sustained the appeal of Donald S. MacLeod (MacLeod) and held the Borough's Ordinance No. 393 to be invalid. We affirm.

Ordinance No. 393, entitled the "Edgeworth Environmental Assessment Ordinance," was advertised on June 24, 1981 and was enacted by the Borough's Council at its regular meeting on July 13, 1981. The ordinance was by its terms made retroactive to June 24, 1981. MacLeod*fn1 filed an appeal to the Court of Common Pleas on July 24, 1981, pursuant to the provisions of Section 1003 of the Pennsylvania

[ 72 Pa. Commw. Page 124]

Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 11003,*fn2 contending that Ordinance No. 393 was invalidity enacted due to the Borough's failure to give proper notice and hearing as required by Sections 608 and 609 of the MPC, 53 P.S. §§ 10608, 10609. The Borough moved to quash the appeal, arguing that Ordinance No. 393 was not a zoning ordinance and therefore not subject to challenge under the review provisions of the MPC. The Court ruled that Ordinance No. 393 was a zoning ordinance and denied the Borough's motion to quash. The Court further determined that the ordinance was invalidity adopted due to the failure of the governing body to provide the public notice and hearing required by the MPC. The Borough then perfected its appeal to this Court.

Before discussing the primary issue of this appeal, we feel compelled to make an initial observation. Our review of the record discloses that the Common Pleas Court made a final determination on the merits of this appeal when in reality it was faced with only a motion to quash by the Borough. Normally, we would remand such a matter for proper proceedings. However, after a review of the record and briefs filed in this matter, we are convinced that the only matter at issue before the Common Pleas Court was the question raised by the motion to quash; that is, whether Ordinance No. 393 was a zoning ordinance.*fn3 We

[ 72 Pa. Commw. Page 125]

    therefore see no need to order a remand to correct this harmless error.

The issue presented is, as we have noted, whether Ordinance No. 393 is a zoning ordinance. Such a question, we believe, is basically a matter of construction and interpretation of the ordinance; as such, it is a question of law subject to our review.*fn4 See Township of ...


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