Appeal from Lancaster County Common Pleas Court, Honorable Ronald L. Buckwalter, Judge.
Frank J. Vargish, III, Blakinger, Byler & Thomas, P.C., Lancaster, for appellant.
Mitchell A. Sommers, for appellees.
Doyle and McGinley, JJ., and Narick, Senior Judge. McGinley, J., concurs in the result only.
[ 129 Pa. Commw. Page 403]
This is an appeal from an order of the Court of Common Pleas of Lancaster County granting the peremptory judgment motion*fn1 of the Zoning Hearing Board (ZHB) of Brecknock
[ 129 Pa. Commw. Page 404]
Township, William E. Kring, the zoning officer, and the Board of Supervisors for the Township (collectively Appellees), and dismissing the motion of Penn Advertising Inc. (Penn Inc.), appellant, for summary or peremptory judgment in mandamus to compel the ZHB to grant a "deemed approval"*fn2 to Penn Inc.'s request for a variance.
The uncontested facts are as follows: Penn Inc. entered into a lease agreement with Glen and Margaret Cockley for the purpose of erecting two outdoor advertising signs on property owned by the Cockleys. The proposed signs did not comply with the Brecknock Zoning Ordinance in that they were three and one-half (3 1/2) times the size of those permitted by the ordinance. For this reason, an application for a zoning permit received by the zoning officer on August 31, 1987, had been denied. Penn Inc. filed its application for a variance with the ZHB on December 15, 1987. The ZHB received the application on December 17, 1987 and scheduled a hearing for January 19, 1988. Prior to the hearing, the ZHB advertised the hearing and posted the property. The ZHB then convened the hearing as scheduled on January 19, but Penn Inc. did not appear.
Because of the absence of Penn Inc., the ZHB continued the hearing to February 16, 1988, a date sixty-one days after the receipt of the application. It then sent a letter, dated January 22, 1988, to Penn Inc. advising it of the continued hearing, and promising Penn Inc. an "opportunity to show just cause" for failing to appear at the original hearing on January 19, 1988.
The following colloquy took place at the January 19 meeting:
MR. GOOD: This is Case No. 134, January 19, 1988.
We are here to hear the applicant, Penn Advertising, Incorporated, ...