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WILLIAM GILCHRIST v. ZONING HEARING BOARD OLD FORGE BOROUGH (06/04/84)

decided: June 4, 1984.

WILLIAM GILCHRIST, SR.
v.
THE ZONING HEARING BOARD OF OLD FORGE BOROUGH, CARMINE BRUNO ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas of Lackawanna County in case of William Gilchrist, Sr. v. The Zoning Hearing Board of Old Forge Borough, No. 81 Civil 7073.

COUNSEL

Richard S. Campagna, for appellants.

William F. Bradican, with him, Brigid E. Carey, for appellees.

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

Author: Macphail

[ 83 Pa. Commw. Page 28]

Appellants*fn1 here challenge an order of the Court of Common Pleas of Lackawanna County dismissing a rule to show cause why that Court should not vacate its final order in a zoning appeal. We affirm.

The relevant procedural history in this matter dates to October 2, 1981, when Appellants participated as protestants in a hearing before the Zoning Hearing Board of Old Forge Borough (Board) regarding a request by William Gilchrist, Sr. (Landowner) for a nonconforming use certificate. The Landowner's request was denied by the Board on October 26, 1981 and a timely appeal was filed with the court of common pleas on November 23, 1981. Appellants' counsel

[ 83 Pa. Commw. Page 29]

    learned of the appeal on or about December 17, 1981 and requested that Landowner's counsel supply him with a copy of the notice of appeal. A copy of the appeal notice was subsequently forwarded to Appellants' counsel who took no further action in the matter.

Several months later, in June, 1982, the court of common pleas granted the Landowner's motion to have additional evidence taken by deposition. Since additional evidence was presented to the common pleas court, it conducted de novo review*fn2 and reversed the Board's denial of nonconforming use status in a decision and order dated September 3, 1982. No direct appeal was taken from that order.

On October 18, 1982,*fn3 however, Appellants filed a petition for a rule to show cause why the court order granting leave to file additional evidence should not be vacated, the deposition testimony filed pursuant to that order as well as the briefs filed by the Board and Landowner should not be stricken, and the September 3 order of the common pleas court should not be vacated. The basis for Appellants' requested relief is their contention that they were entitled to automatic party status in the court of common pleas appeal by virtue of their participation as parties before the Board. Appellants argue that since they were entitled to party status before the common pleas court, any actions which were taken by that court without

[ 83 Pa. Commw. Page 30]

    notice being afforded to Appellants, were invalid. As a final remedy, Appellants requested that review be conducted by the court of common pleas based ...


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