Appeal from the Order of the Court of Common Pleas of Allegheny County, in the case of Karl Smith Development Co. v. Borough of Aspinwall, Robert T. Mulvihill, Chairman of the Planning Commission, and G. James Haberman, President of the Council of said Borough, No. SA 1587 of 1985.
Eugene A. Lincoln, for appellant.
Robert L. Byer, with him, Blaine A. Lucas, Eileen R. Sisca, Eckert, Seamans, Cherin & Mellott, for appellees.
Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Senior Judge Narick.
[ 125 Pa. Commw. Page 689]
Karl Smith Development Company (Appellant) has appealed from an order of the Court of Common Pleas of Allegheny County.
The complicated procedural history giving rise to this appeal is as follows. In July of 1983, Appellant filed an action in mandamus in the court of common pleas. The complaint alleged that the Borough of Aspinwall, Robert T. Mulvihill, the Chairman of the Borough Planning Commission and G. James Haberman, President of the Borough Council (collectively, Appellees) had issued Building Permit No. 1295 to Appellant for the erection of an 84-unit apartment complex in 1977,*fn1 and that the permit was unlawfully revoked in April of 1978 after construction had begun.*fn2 It was further alleged in the complaint that the zoning classification of the property has since been changed so as to prohibit the apartment complex use. The relief sought was reinstatement of the building permit, as well as monetary damages.
In their answer and new matter to the complaint, Appellees averred that Building Permit No. 1295 was granted for a 12-unit apartment building.*fn3 Further, it was averred that the building permit was revoked because
[ 125 Pa. Commw. Page 690]
of Appellant's refusal to cease excavating upon a dedicated but unopened public street, 7th Street, which was adjacent to Appellant's property. Appellees raised the statute of limitations as a defense. It is not disputed that Appellant did not file any appeal from the revocation.
When the mandamus action was called for trial on September 19, 1985, the trial court judge, Judge McGowan, entered the following order:
AND NOW, to-wit, this 19th day of September, 1985, it is hereby ordered, adjudged and decreed that the above matter is remanded to the Planning Commission of the [Borough of Aspinwall] and such other necessary municipal agencies for a full hearing of the proposed development of 84-units [with] official transcripts thereof and further the matter shall be transferred to the statutory appeals docket without prejudice to either party. This court shall retain jurisdiction of the matter pending return from the appropriate municipal bodies of the Boro. of Aspinwall and return shall be made within 60 days.
Pursuant to this order, three hearings were held before the Aspinwall Planning Commission. The Commission took testimony from Appellant, various experts and interested citizens during the course of those hearings and, at the conclusion of the third hearing, set forth seventeen specific reasons for denying Appellant's application for an 84-unit apartment complex.*fn4 From this denial, Appellant filed ...