Appeal from the Order of the Court of Common Pleas of Cumberland County in the case of Upper Allen Township v. Zoning Hearing Board of Upper Allen Township and Clepper Farm, Inc., No. 3784 A Civil 1980.
John M. Eakin, for appellant.
Dusan Bratic, for appellee, Zoning Hearing Board of Upper Allen Township.
Ronald Katzman, with him Laurence W. Dague and William E. Miller, Jr., Keefer, Wood, Allen & Rahal, for appellee, Upper Allen Township.
Judges Rogers, MacPhail and Barry, sitting as a panel of three. Opinion by Judge MacPhail.
[ 77 Pa. Commw. Page 583]
Clepper Farms, Inc. (Appellant) has appealed from an order of the Court of Common Pleas of Cumberland County which granted its motions to quash two zoning appeals filed with that court by Appellees*fn1 and remanded for a hearing on the merits. Appellant specifically challenges the remand portion of the court's order.
The history of this land use dispute, aptly characterized by the court of common pleas as a "recurring procedural nightmare," began with the rejection of Appellant's preliminary subdivision plan by the Board of Commissioners of Upper Allen Township (Commissioners) on June 11, 1980. Believing the Commissioners' rejection to be improper in form,
[ 77 Pa. Commw. Page 584]
Appellant filed a mandamus action with the court of common pleas, on July 1, 1980, seeking a "deemed approval" of its preliminary plan pursuant to Section 508 of the Pennsylvania Municipalities Planning Code (MPC).*fn2 The court of common pleas' determination that Appellant was entitled to deemed approval of its plan was affirmed by this Court in Clepper Farms, Inc. v. Trimmer, 66 Pa. Commonwealth Ct. 326, 443 A.2d 1385 (1982).
At the same time that it filed the mandamus action, Appellant also filed a precautionary appeal with the court of common pleas pursuant to Section 1006(1)(a) of the MPC, 53 P.S. § 11006(1)(a) challenging the merits of the Commissioners' decision rejecting the preliminary plan. Shortly thereafter, the Graham Group,*fn3 on July 10, 1980, filed its own precautionary appeal with the Township Zoning Hearing Board (Board) based on the theory that if Appellant was successful in its mandamus action, the Graham Group would then become "persons aggrieved" by the deemed approval and entitled to file an appeal under Section 1007 of the MPC, 53 P.S. § 11007.
Due to the fact that the record of the proceedings before the Commissioners had already been certified to the court of common pleas in the Appellant's mandamus action, the Board did not conduct a hearing on the Graham Group's appeal. Fearing that the Board's failure to act within the time limitations imposed by Section 908(9) of ...