Appeal from the Order of the Court of Common Pleas of Luzerne County in the case of Michael Lefchak and James M. Lavan v. Alfred Centrella, LeRoy Sabbatini and Constantino Sabastianelli, in their official capacity as members of the Pittston Township Zoning Hearing Board, No. 1573-C of 1983.
Arthur L. Piccone, with him, Paula F. Garrety, for appellants.
Joseph Matthias Cosgrove, with him, Alfred Centrella, LeRoy Sabbatini and Constantino Sabastianelli, for appellees.
Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Rogers.
[ 89 Pa. Commw. Page 302]
Michael Lefchak and James A. Lavan (appellants) have appealed from an order of the Court of Common Pleas of Luzerne County refusing the prayer of their petition for a peremptory judgment in mandamus.*fn1
[ 89 Pa. Commw. Page 303]
In September, 1981, Joseph Stella and Claire, his wife, applied for and received from the zoning officer of Pittston Township permission to construct a single family dwelling on an irregularly shaped lot without conforming to all of the yard requirements of the township's zoning ordinance. The appellants, owners of adjoining lots, appealed the grant of the permit and, following a hearing, the Zoning Hearing Board of Pittston Township (board) upheld the zoning officer's actions. The appellants appealed to the court of common pleas which, on September 21, 1981, remanded the matter to the board for further proceedings. The board conducted a hearing on November 4, 1982, and issued a decision on March 7, 1983, again upholding the building permit. Thereupon, the appellants filed a complaint in mandamus in the common pleas court alleging that because the board had failed to render a written decision within forty-five days after the November 4, 1982 hearing as required by Section 908(9) of the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. § 10908(9), the decision should be in their favor. The appellants filed a petition for peremptory judgment which the court refused. They then filed a praecipe for judgment on the court's order and the prothonotary entered judgment against them and in favor of
[ 89 Pa. Commw. Page 304]
Mr. and Mrs. Stella, from which the appeal has been taken.
Section 908(9) of the MPC provides, in pertinent part, as follows:
The [zoning hearing] board shall conduct hearings and make decisions in accordance with the following requirements:
(9) The board . . . shall render a written decision or, when no decision is called for, make written findings on the application within forty-five days after the last hearing before the board or the hearing officer. . . . Where the board fails to render the decision within the period required by this subsection, . . . the decision shall be deemed to have been rendered in favor of the ...