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Fayette County Office of Planning, Zoning and Community Development v. Fayette County Zoning Hearing Board

September 11, 2009

FAYETTE COUNTY OFFICE OF PLANNING, ZONING AND COMMUNITY DEVELOPMENT
v.
FAYETTE COUNTY ZONING HEARING BOARD AND JOSEPH CELLURALE, JR.
APPEAL OF: TERRY KRISS AND DIANE KRISS



Per curiam.

ORDER

AND NOW, this 11th day of September, 2009, it is ordered that the above-captioned opinion filed on July 2, 2009, shall be designated OPINION, rather than MEMORANDUM OPINION, and it shall be reported.

BEFORE: HONORABLE ROBERT SIMPSON, Judge.

OPINION

JUDGE SIMPSON

FILED: June 2, 2009

In this motion to quash, we are asked whether the failure to appeal an order denying a petition to intervene divests this Court of jurisdiction over an appeal of a subsequent order denying a second petition to intervene in the same ongoing litigation. Concluding neither order denying intervention in this controversy is an appealable collateral order, I grant the motion to quash.

The Fayette County Zoning Hearing Board (ZHB) and Joseph Cellurale, Jr., (Landowner) (collectively, Appellees) filed a motion to quash Terry and Diane Krisses' (the Krisses) appeal of a February 3, 2009 order of the Court of Common Pleas of Fayette County (trial court) denying the Krisses' emergency petition to intervene. Appellees maintain this Court lacks jurisdiction over the Krisses' appeal where they failed to appeal a previous order of the same court denying their first petition to intervene in an appeal of a ZHB's decision.

In January 2007, the Fayette County Office of Planning, Zoning and Community Development (County) issued Landowner an enforcement notice pursuant to the Pennsylvania Municipalities Planning Code (MPC).*fn1 In November 2007, the Zoning Board sustained Landowner's appeal of the enforcement notice. The Krisses did not enter an appearance before the ZHB.

The County timely appealed the ZHB's decision to the trial court. Landowner intervened. In January 2008, the Krisses filed a petition to intervene pursuant to Section 1004-A of the MPC, 53 P.S. §11004-A (First Petition to Intervene).*fn2 They asserted that they reside next to Landowner's property.

By order of January 28, 2008, the trial court denied the Krisses' First Petition to Intervene on the basis the MPC reserves enforcement actions to municipalities. See Sections 616.1 of the MPC, 53 P.S. §10616.1 (relating to issuances of enforcement notices); Section 617 of the MPC, 53 P.S. §10617 (relating to causes of action); and Section 617.2 of the MPC, 53 P.S. §10617.2 (relating to enforcement remedies).*fn3 Importantly, the Krisses did not appeal the trial court's order.

About a year later, the Krisses filed an emergency petition to intervene (Second Petition to Intervene). The Krisses continued to raise their adjoining landowner status, but they asserted a different legal basis for intervention: Pa. R.C.P. No. 2327. In relevant part, Pa. R.C.P. No. 2327 provides:

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene ...


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