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JAMES HARRIS ET AL. v. OIL SERVICE (11/23/83)

decided: November 23, 1983.

JAMES HARRIS ET AL., APPELLANTS
v.
OIL SERVICE, INC. ET AL., APPELLEES



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.

COUNSEL

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 ...


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