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BRUCE BARNER ET AL. v. BOARD SUPERVISORS SOUTH MIDDLETON TOWNSHIP ET AL. (02/16/88)

decided: February 16, 1988.

BRUCE BARNER ET AL., APPELLANTS
v.
BOARD OF SUPERVISORS OF SOUTH MIDDLETON TOWNSHIP ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Cumberland County, in case of Bruce Barner, Lois Barner, Robert Brooks, Kenneth Bolton, Ed Oliveira, Ralph Thomas, Fred Townsend, Fred Stahl, Robert Bear, Bud Warner, Mr. and Mrs. Charles Bricker and Glen Feesor v. Board of Supervisors of South Middleton Township v. Constantinos J. Mallios, Demetrious J. Mallios, John N. Mallios, Nicholas Mallios and Thomas N. Papoutsis, No. 221 Civil, 1987.

COUNSEL

Richard P. Mislitsky, Hepford, Swartz, Menaker & Morgan, for appellants.

Dale F. Shughart, Jr., Fowler, Addams, Shughart & Rundle, with him, Charles Doran Vance, Jr., for appellees.

Judges MacPhail and Doyle, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 113 Pa. Commw. Page 446]

Appellants*fn1 have appealed from an order of the Court of Common Pleas of Cumberland County which quashed their appeal from a decision of the Board of Supervisors of South Middleton Township (Board). The Board's decision had granted an application for a conditional use for the development of land owned by Appellees.*fn2 For the reasons which follow, we affirm the decision of the common pleas court to quash the appeal.

The central issue in this case involves a matter of procedure, the resolution of which will be made more clear by a brief outline of the procedural history developed to date. In February, 1986, Appellees filed an application for a conditional use with the Board. After hearings were held, the Board denied Appellees' application on May 15, 1986. Appellees filed a direct appeal to the common pleas court from the Board's action pursuant to Section 1006(1) of the Pennsylvania Municipalities Planning Code (MPC),*fn3 53 P.S. § 11006(1). On September 30, 1986, the common pleas court relinquished jurisdiction and remanded the matter to the Board which was directed to render a proper adjudication with fact findings and conclusions of law. The court order further provided that the Board's decision be "based on the existing record and on any additional testimony deemed appropriate."

The Board subsequently conducted additional hearings during which a lengthy record was compiled. The

[ 113 Pa. Commw. Page 447]

Board rendered an adjudication on January 15, 1987, in which it reversed its prior action and granted Appellees' conditional use application subject to nine specific conditions. On January 26, 1987, protestants to the application who had intervened before the Board (Appellants herein) filed a direct appeal to the court of common pleas from the Board's grant of the conditional use application. Appellees intervened in the appeal and filed a motion to quash on the ground that the protestants should have first submitted their objections to the Township Zoning Hearing Board (ZHB) as directed by Section 1007 of the MPC, 53 P.S. § 11007. The common pleas court agreed and concluded that it lacked jurisdiction over the appeal. The motion to quash was, accordingly, granted and the instant appeal followed.

The first issue raised by Appellants is whether or not the common pleas court erred in concluding that it lacked jurisdiction over their direct appeal from the decision of the Board. The court based its jurisdictional ruling on Section 1007 of the MPC, which provides as follows:

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 of 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 ...


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