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IRVING S. KARPE v. BOROUGH STROUDSBURG (02/14/86)

decided: February 14, 1986.

IRVING S. KARPE, APPELLANT
v.
BOROUGH OF STROUDSBURG, APPELLEE



Appeal from the Order of the Court of Common Pleas of Monroe County in case of Irving S. Karpe v. Borough of Stroudsburg, No. 1088 October Term, 1978.

COUNSEL

Edwin Krawitz, for appellant.

Phillip H. Williams, for appellee.

Judges Rogers and Palladino, and Senior Judge Blatt, sitting as a panel of three. Opinion by Judge Blatt. Judge Rogers concurs in result only.

Author: Blatt

[ 95 Pa. Commw. Page 147]

Irving S. Karpe (petitioner) appeals here from a judgment which the Court of Common Pleas of Monroe County entered against him in an action he had brought against the Borough of Stroudsburg (Borough).

The petitioner applied for zoning and building permits for the construction of a parking lot within the Borough, which were then issued to him by the Borough's Acting Zoning Officer. The Borough thereafter

[ 95 Pa. Commw. Page 148]

    appealed the permits issuance to the Zoning Hearing Board, which revoked them on the basis that the Acting Zoning Officer had exceeded his authority in issuing them.

The petitioner did not appeal that decision, but later filed an action seeking the recovery of the money he had expended in activities preparatory to construction which were purportedly undertaken in reliance upon the permits.

We preliminarily observe that Section 1001 of the Pennsylvania Municipalities Planning Code (MPC),*fn1 provides that the appeal procedures set forth in Article X of the MPC are intended to constitute the exclusive mode for securing review of any ordinance, decision or order made or issued pursuant to the MPC by any municipal governing body or agency, such as the Zoning Board's decision here. The petitioner, therefore, could have appealed the Zoning Hearing Board's decision to the court of common pleas pursuant to Section 1006 of the MPC, 53 P.S. § 11006. Moreover, Section 1504 of the Statutory Construction Act, 1 Pa. C.S. § 1504, requires that, where there is a clear statutory remedy which is adequate, it is exclusive. Department of Environmental Resources v. Williams, 57 Pa. Commonwealth Ct. 8, 425 A.2d 871 (1981).

Having failed to pursue the appeals remedy available to him, therefore, the petitioner may not successfully maintain a separate action for damages against the Borough. See also Jonnet v. Bodick, 431 Pa. 59, 244 A.2d 751 (1968). (Action for damages by property owner who expended money in reliance upon assurances he would ...


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