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BOARD COMMISSIONERS ROSS TOWNSHIP v. JOSEPH HARSCH AND JOAN HARSCH (11/18/83)

decided: November 18, 1983.

BOARD OF COMMISSIONERS OF ROSS TOWNSHIP, APPELLANT
v.
JOSEPH HARSCH AND JOAN HARSCH, HIS WIFE, APPELLEES. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, INTERVENOR



Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Joseph Harsch and Joan Harsch, his wife v. Board of Commissioners of Ross Township, No. SA 1189 of 1980.

COUNSEL

William W. Milnes, Brandt, Milnes, Rea and Wagner, for appellant.

Joseph Harsch and Joan Harsch, his wife, appellees, for themselves.

Jason W. Manne, Assistant Counsel, for intervenor.

Judges Blatt, Williams, Jr. and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr.

Author: Williams

[ 78 Pa. Commw. Page 396]

This is an appeal by the Board of Commissioners of Ross Township (Board) from an order of the Allegheny County Court of Common Pleas directing the township to adopt a curative amendment*fn1 proposed by the pro se appellees, Joseph and Joan Harsch. The Harsches instituted this action because they wished to operate a Group Day Care Home in their residence, and the Ross Township ordinance does not provide for such a facility anywhere in the township. By a 1976 amendment to its ordinance, the township permitted the operation of a Family Day Care Home, consisting of no more than six children supervised by

[ 78 Pa. Commw. Page 397]

    at least one adult care-giver, as a conditional use in an R-1 district. The Group Day Care Home is a facility which contemplates care given by at least two adults, in this residence, to up to eleven children. At the time the Harsches began this action, both Group and Family Day Care Homes were licensed*fn2 separate entities by the Pennsylvania Department of Public Welfare (DPW).

After the township refused to enact their curative amendment, the Harsches appealed to the common pleas court, which reversed the Board, finding the ordinance to be exclusionary and unduly restrictive. The Board appealed to this Court, which remanded the matter to the common pleas court at Board of Commissioners of Ross Township v. Harsch, 63 Pa. Commonwealth Ct. 400, 437 A.2d 1338 (1981), because gross deficiencies in the record precluded effective appellate review.

Following our remand order, without expanding the record, and subsequent to procedural irregularities not challenged by the parties, the common pleas court issued an order on June 7, 1982, which mandated the adoption of the proposed curative amendment. Pursuant to our order, the trial court accompanied that order with findings of fact,*fn3 albeit sparse, and conclusions of law, as well as a written opinion. We shall therefore now address the merits of this case, bearing in mind that our scope of review, where the

[ 78 Pa. Commw. Page 398]

    common pleas court has taken additional evidence, is limited to ascertainment of whether that court abused its discretion or committed an error of law. Snyder v. Railroad Borough, 59 Pa. Commonwealth Ct. 385, 430 A.2d 339 (1981); Ellick v. Board of Supervisors ...


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