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decided: November 23, 1983.


Appeal from the Order of the Court of Common Pleas of Allegheny County in case of James Harris, Betty Podsiadly, Rosella L. Szal and Regis J. Ryan v. Oil Service, Inc., Drum Processors, Inc., and the Borough of McKees Rocks, No. SA 393 of 1982.


John E. Quinn, Sikov & Love, P.A., for appellants.

Samuel J. Pasquarelli, Jubelirer, Pass & Intrieri, P.C., for appellees.

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

Author: Macphail

[ 78 Pa. Commw. Page 511]

Appellants*fn1 have brought this appeal from an order of the Court of Common Pleas of Allegheny County which quashed their zoning appeal for lack of jurisdiction.

Drum Processors, Inc. (Applicant), the lessee of a property located in the Borough of McKees Rocks, was issued an occupancy permit on April 1, 1982 to use the property for cleaning storage drums. Appellants, alleging they did not learn that the permit had been granted until April 13, 1982, filed an appeal with the common pleas court on May 12. The appeal purported to be from the action of the Borough Council, although it later became clear that the building inspector had issued the permit without Borough Council involvement.*fn2 Following a hearing, the common pleas court quashed the appeal. The court concluded that Appellants had failed to exhaust their exclusive administrative remedy with the Borough's Zoning Hearing Board (Board) and that their appeal was untimely.

Section 1007 of the Pennsylvania Municipalities Planning Code (MPC)*fn3 is the appeals provision applicable

[ 78 Pa. Commw. Page 512]

    to Appellants' permit challenge. Section 1007 provides that:

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 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. . . .

Appeals to court from the decision of the zoning hearing board may be taken by any party aggrieved. (Emphasis added.)

This section establishes that whether Appellants were challenging a Borough Council action or action by the building inspector, their appropriate and exclusive remedy*fn4 would be an appeal to the Board. Absent such an appeal, the common pleas court correctly concluded that it was powerless to rule on the permit challenge. See Gossman v. Lower Chanceford Township Board of Supervisors, 62 Pa. Commonwealth Ct. 229, 435 A.2d 684 (1981); Galbreath v. Board of Supervisors of Northampton Township, 55 Pa. Commonwealth Ct. 165, 423 A.2d 45 (1980).

Appellants contend, however, that rather than quash the appeal, the court of common pleas should have transferred their appeal to the Board for further proceedings. This argument is, of course, premised on the assumption that Appellants' appeal was timely filed and, thus, capable of being validly transferred. We need not decide the timeliness issue, however, because

[ 78 Pa. Commw. Page 513]

    even assuming the appeal was timely filed we conclude that transfer would be inappropriate.

We first observe that no direct authority which would require the transfer of an erroneously filed zoning appeal from a court of common pleas to a zoning hearing board has been cited by the parties and we have found none. The issue was raised, but not decided, in Gossman, although we did suggest there in dicta that such a transfer would not be appropriate.

Appellants point to Section 708 of the Judicial Code, 42 Pa. C.S. § 708, as support for their transfer request. That section, however, applies primarily to matters which have been improvidently filed with a court and which, rather than be dismissed, can be regarded and acted on by that court as if filed in proper form. Section 708 does not specifically or by implication authorize transfers between courts and local zoning hearing boards.

We also conclude that Section 5103 of the Judicial Code, 42 Pa. C.S. § 5103, which, at the time pertinent to the instant appeal, related to the transfer between courts of erroneously filed appeals, does not permit a transfer to the Board.*fn5 While we have in the past allowed transfers which were not specifically addressed by Section 5103, we did so only in order to prevent new

[ 78 Pa. Commw. Page 514]

    procedural rules from unfairly precluding an appeal or a cause of action which was instituted in accord with previously correct procedures. Kim v. Heinzenroether, 37 Pa. Commonwealth Ct. 328, 390 A.2d 874 (1978). Such considerations are absent from the instant case, since the appeals procedure at issue here has been in effect for more than a decade.

We, accordingly, will affirm the order of the court of common pleas.


The order of the Court of Common Pleas of Allegheny County, dated October 5, 1982, is hereby affirmed.



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