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decided: November 22, 1983.


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Township of Reserve v. Zoning Hearing Board of Reserve Township v. Robert W. Schomaker, No. SA 1001 of 1980.


Deborah S. Miskovich, Hess & Humphreys, for appellant.

Russell J. Ober, with him, Kim D. Eaton, Rose, Schmidt, Dixon & Hasley, for appellee, Zoning Hearing Board of Reserve Township.

Samuel P. Kamin, with him Howard M. Louik, Goldberg & Kamin, for appellee, Residents and Taxpayers of Township of Reserve.

President Judge Crumlish, Jr. and Judges MacPhail and Doyle sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 78 Pa. Commw. Page 498]

Before this Court is an appeal by Robert W. Schomaker (Appellant) from a decision and order of the Court of Common Pleas of Allegheny County affirming the Zoning Hearing Board of Reserve Township's (Board) denial of a proposed planned residential development. We must reverse.

The application for the planned residential development (PRD) at issue in this case was filed by Appellant with the Board of Commissioners of Reserve Township (Commissioners) in February, 1980. Hearings were held, and on August 25, 1980 the PRD was approved subject to Appellant satisfying thirty-one separate conditions. The conditions were imposed in the absence of a PRD ordinance which, as of the time of the instant appeal, had as yet not been enacted.

On September 9, 1980, two separate appeals of the Commissioners' action were filed in the Court of Common Pleas of Allegheny County by residents of the Township. The first appeal, as of No. SA 1000 of 1980, was captioned: "In the Court of Common Pleas of Allegheny County, Pennsylvania" and the second, docketed as of No. SA 1001 of 1980, was captioned: "Before the Zoning Hearing Board of Reserve Township." Pursuant to motions filed by the Township, the first of these appeals was quashed on the basis that the Court was without jurisdiction to entertain the appeal. The Court, properly decided that the appeal was governed by Section 1007 of the Pennsylvania Municipalities Planning Code (Code),*fn1 53 P.S. § 11007 which dictated that such an appeal should be filed with the township zoning hearing board. The second appeal, however, was transferred to the Board by the Court

[ 78 Pa. Commw. Page 499]

"for full disposition." The Board subsequently dismissed this appeal not on grounds that it lacked merit or was otherwise defective, but rather on the basis of what it deemed to be the invalidity of the Commissioners' approval of the PRD in the absence of a PRD ordinance, which in effect rendered the Commissioners' action a nullity and unappealable. This decision was appealed by the Township to the common pleas court which affirmed the Board. The appeal to this Court followed.

This Court's scope of review in zoning appeals is to determine whether there has been an abuse of discretion or an error of law. See Nardozza Zoning Case, 45 Pa. Commonwealth Ct. 482, 405 A.2d 1020 (1979); Children's Aid Society v. Zoning Board of Adjustment, 44 Pa. Commonwealth Ct. 123, 402 A.2d 1162 (1979). See generally R. Ryan, Pennsylvania Zoning Law and Practice § 9.5.10 (1981).

Appellant*fn2 initially asserts that the common pleas court erred, as a matter of law, in its transfer of the appeal of the residents to the Board for disposition and that there was no timely appeal to the Board such that would permit it to properly address the PRD approval. We are constrained to agree.*fn3 Section 1007

[ 78 Pa. Commw. Page 500]

    of the Code is the controlling law for the purposes of the case at bar*fn4 as it reads, in pertinent part:

Persons aggrieved by a use or development permitted on the land of another who desire to secure review or correction of a decision or order of the governing body or of any officer or agency of the municipality which has permitted the same, on the grounds that such decision or order is not authorized by or is contrary to the provisions of an ordinance or map shall first submit their objections to the zoning hearing board under sections 909 and 915.

The court of common pleas was thus without jurisdiction not only to adjudicate the first appeal filed by the residents, but to address this appeal as well.

[ 78 Pa. Commw. Page 501]

The common pleas court recognized its lack of jurisdiction at the time of the transfer of this matter to the Board. The court nonetheless justified the transfer on the theory that the residents' appeal was captioned as being before the Board and that the prothonotary's acceptance for filing thereof was a breakdown in the operation of the court of a nature sufficient to warrant the transfer and to also require the Board to address the appeal nunc pro tunc.*fn5 See Bass Page 501} v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979). We cannot accept this logic. At the time the matters at issue herein transpired, Section 5103(a) of the Judicial Code, 42 Pa. C.S. § 5103(a) read:

General Rule. -- If an appeal or other matter is taken to or brought in a court or magisterial district which does not have jurisdiction of the appeal or other matter, the court or district justice shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper court or magisterial district of this Commonwealth, where the appeal or other matter shall be treated as if originally filed in the transferee court or magisterial district on the date first filed in a court or magisterial district.

Zoning hearing boards, not being courts or magisterial districts, are clearly not encompassed within this provision.*fn6

[ 78 Pa. Commw. Page 502]

Therefore an appeal to a court which lacks jurisdiction, because jurisdiction lies instead with a zoning hearing board, as in the case sub judice, clearly could not have been saved by a transfer to the board by the court. See Rostosky v. Department of Environmental Resources, 26 Pa. Commonwealth Ct. 478, 364 A.2d 761 (1976). The appeal should instead have been quashed.*fn7 Since the common pleas court was without jurisdiction in this matter and without authority to transfer it to the proper adjudicatory Board, it similarly

[ 78 Pa. Commw. Page 503]

    was without jurisdiction to sua sponte direct the Board to address the residents' appeal, regardless of any factors possibly relating to a nunc pro tunc consideration.*fn8 And, as the common pleas court had no authority to transfer the residents' appeal, the September 9, 1980 filing date thereof with that Court is irrelevant with respect to whether the matter was timely filed as an appeal to the Board. The matter cannot be considered to have gone before the Board prior to March 9, 1981, the date of the transfer and, as this is well in excess of thirty days beyond the August 25, 1980 approval of the PRD by the Commissioners, the Board too was without jurisdiction to hear the appeal. Section 915 of the Code, 53 P.S. § 10915. See In Re: Appeal of Gilbert, 34 Pa. Commonwealth Ct. 299, 383 A.2d 556 (1978).

Accordingly, we must reverse that portion of the decision and order of the Court of Common Pleas of Allegheny County in this matter which found the Board to have jurisdiction to address the residents' appeal and vacate that portion affirming the Board's invalidation of the Commissioners' action. In the absence of a timely appeal, the tentative approval of Appellants' PRD by the Commissioners must stand. While we do not here address any appeal which might possibly emanate from a final approval of the PRD by the Commissioners, we do note that, although their initial approval was couched in terms which ostensibly rendered it consistent with a proposed PRD ordinance

[ 78 Pa. Commw. Page 504]

    for the Township, their action was of an ad hoc nature pertaining exclusively to the application of Appellant. Thus, they were without authority to grant temporary approval to Appellant because no valid ordinance had been enacted by the Township, under Section 702 of the Code, 53 P.S. § 10702, which would allow the Commissioners to "approve, modify or disapprove any development plan. . . ." Nor could the specific approval of the Appellant's plan be considered the passage of such an ordinance. There was no general purpose to the approval; rather it was specific, addressing only the transaction of the business at hand and therefore a non-legislative act. Almy v. Borough of Wilkinsburg, 53 Pa. Commonwealth Ct. 46, 416 A.2d 638 (1980).*fn9

[ 78 Pa. Commw. Page 505]


Now, November 22, 1983, the decision and order of the Court of Common Pleas of Allegheny County in the above captioned matter, Case No. SA 1001 of 1980, dated October 6, 1981, is hereby reversed in part and vacated consistent with the opinion above.


Reversed in part and vacated.

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