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JOHN A. FULMER v. JOHN J. VISNESKI (12/08/88)

decided: December 8, 1988.

JOHN A. FULMER, SR.
v.
JOHN J. VISNESKI, WILSON BOROUGH CODE ADMINISTRATOR AND LICENSE OFFICER, AND WILSON BOROUGH ZONING HEARING BOARD AND DARL SMITH, ET AL. DARL SMITH, ET AL., APPELLANTS



Appeal from the Order of the Court of Common Pleas Northampton County, in the case of John A. Fulmer, Sr. v. John J. Visneski, Wilson Borough Code Administrator and License Officer, and Wilson Borough Zoning Hearing Board, No. 1987-1112.

COUNSEL

Thomas L. Walters, Coffin, Lewis and Walters, for appellants.

Gene F. Roscioli, for appellee.

Judges Barry and Colins, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Colins.

Author: Colins

[ 121 Pa. Commw. Page 557]

Darl Smith et al.*fn1 (appellants) appeal from an order of the Court of Common Pleas of Northampton County denying appellants' Petition to Intervene in a mandamus action. This mandamus action was initiated by John Fulmer, Sr. (Fulmer), wherein he requested that the trial court order the Zoning Officer of the Borough of Wilson (Borough) to issue to him a Certificate of Occupancy for a parcel of land within the Borough.

The Zoning Officer denied Fulmer's request for permission to establish a used car lot and sales facility on premises in the Borough. Fulmer appealed to the Zoning Hearing Board (Board) which held a public meeting on the matter on December 19, 1986, where by a vote of one to one Fulmer's request for a variance was denied. On the same night, Fulmer was provided with a written decision which contained findings of fact and conclusions of law and referred to the vote by the Board as a two to one vote, denying his request. Apparently, the written decision was prepared prior to the actual meeting and one of the three members of the Board was not present to vote at the meeting. Fulmer was never provided with a written decision reflecting the actual tie vote taken at the meeting.

Fulmer filed with the trial court, a complaint in mandamus against the Zoning Officer, requesting that he be ordered to issue a Certificate of Occupancy to Fulmer.*fn2 Fulmer thereafter filed an amended complaint

[ 121 Pa. Commw. Page 558]

    in mandamus on February 27, 1987, and a conference was held before the trial court on March 4, 1987. Appellants' counsel was present at the conference and appellants filed an answer and request for admissions in response to Fulmer's amended complaint. On March 17, 1987, the trial court entered peremptory judgment in mandamus, directing that the Zoning Officer issue a Certificate of Occupancy to Fulmer. The trial court held that the Zoning Officer failed to supply Fulmer with written notice, within forty-five days, of the Board's denial of the Certificate of Occupancy on the basis of the tie vote taken at the meeting of December 19, 1986. Fulmer moved to strike appellants' pleading in the mandamus action, citing appellants' failure to file a written intervention petition. In response thereto, the trial court issued an order on March 20, 1987, stating:

AND NOW, to wit, this 20th day of March, 1987, there appearing to be some question as to the standing of Daryl Smith, et al, and in order to clarify their standing, this Court considers them as proper Intervenors, acknowledges the filing of an Answer, which was considered in the issuance of the mandamus Order of this Court, and the Order of this Court directing mandamus shall continue in force and all parties to follow whatever remedies they deem proper.

(Emphasis added.)

On April 15, 1987, appellants submitted to the trial court a rule to show cause why peremptory judgment should not be opened. Fulmer filed preliminary objections to this Petition to Open, once again arguing that appellants had not petitioned to intervene. On June 30, 1987, the trial court entered another order, therein concluding that the order of March 20, 1987, was "advisory" only ...


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