Appeal from the Order of the Court of Common Pleas of Washington County in the case of John P. Wudkwych and Anna Marie Wudkwych, his wife v. The Borough of Canonsburg; The Borough of Canonsburg Building Inspector; James Puchany, Borough Manager; The Zoning Hearing Board of The Borough of Canonsburg and The Zoning Officer of the Borough of Canonsburg, No. 53 April Term, 1982, A.D.
John P. Liekar, Jr., for appellants.
Patrick C. Derrico, Greenlee, Derrico, Posa & Harrington, for appellees.
Judges Williams, Jr., Doyle and Blatt, sitting as a panel of three. Opinion by Judge Blatt.
[ 84 Pa. Commw. Page 469]
John P. Wudkwych and Anna Marie Wudkwych (appellants) appeal here an order of the Court of Common Pleas of Washington County dismissing a mandamus action initiated by the appellants to compel the zoning officer for the Borough of Canonsburg to provide them with an application for an occupancy permit, to issue the requested permit and to direct certification of the permit by the Zoning Hearing Board of the Borough of Canonsburg (Board).
On January 5, 1982 the appellants filed a variance petition with the Board*fn1 on a form provided by the Borough. They also filed a letter in which their counsel asked the Board to advise him of "any additional requirements and . . . of the hearing date granted." In a letter dated February 18, 1982 the zoning officer informed the appellants directly that he had been advised by the borough solicitor that their application was invalid, and he enclosed a list of the alleged defects.*fn2 In a letter dated February 22, 1982, addressed to the zoning officer, the appellants objected to the submission of their variance application to the borough
[ 84 Pa. Commw. Page 470]
solicitor for preliminary approval but, nevertheless, they provided information to supplement their original petition "in the interest of having this matter disposed of." This letter also contained a request that the zoning officer forward the original petition along with the supplemental information to the Board "immediately, inasmuch as the Wudkwychs [appellants] desire that a hearing be held on the Variance Petition filed January 5, 1982."
The zoning officer's reply dated February 26, 1982 advised the appellants to file a new petition because "the suggestion that I made that you amend your last petition is not acceptable to him [the borough solicitor]." The zoning officer also wrote that, if the new petition was submitted by March 4, a hearing could be scheduled for March 25.
On April 6, 1982 the zoning officer denied the appellants' request for an application for an occupancy permit, and the next day he returned their filing fee for the variance petition and again suggested that they file a new petition. The appellants responded on April 8th by filing the present mandamus complaint. The Board then placed a notice in the local newspaper on April 17 that it would consider the appellants' request for a variance on April 21, 1982.
Although the appellants received notice of the scheduled hearing, they chose not to attend. Instead, they wrote to the Board that their absence was due to their belief that the failure of the Board to schedule a hearing within sixty (60) days of the filing of their variance petition on January 5 gave rise to a "deemed" approval of their request for a variance pursuant to Section 908(9) of the Pennsylvania ...