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California University of Pennsylvania v. Zoning Hearing Board of the Borough of California

Commonwealth Court of Pennsylvania

December 19, 2014

California University of Pennsylvania, Appellant
v.
Zoning Hearing Board of the Borough of California and the Borough of California, Washington County, Pennsylvania

Argued: November 10, 2014

Appealed from No. 2014-259. Common Pleas Court of the County of Washington. Costanzo, J.

Patrick Sorek, Pittsburgh, for appellant.

Thomas P. Agrafiotis, Charleroi, for appellee Borough of California.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

ANNE E. COVEY, Judge

Page 242

California University of Pennsylvania (California University) appeals from the Washington County Common Pleas Court's (trial court) April 25, 2014 order dismissing its appeal. There are two issues before the Court: (1) whether California University filed a timely Notice of Appeal; and (2) whether California University's appeal should have been permitted to proceed nunc pro tunc.[1] After review, we vacate and remand.

On November 12, 2012, the California Borough (Borough) enacted Zoning Ordinance (Ordinance) No. 534 which amended its then-existing Ordinance No. 496, to allow for the conditional sale and use of alcohol at California University's Convocation Center located in the Borough's Institutional District. Section 2 of Ordinance No. 534 requires California University to pay certain fees to the Borough based on the number of persons that attend events at California University's Convocation Center at which alcohol is served. On or about November 21, 2012, California University filed a Notice of Appeal from Ordinance No. 534's enactment to the California Borough Zoning Hearing Board (ZHB) and requested an interpretation of that Ordinance. The ZHB held hearings on December 20, 2012, June 18, 2013 and September 11, 2013, at which both the Borough and California University presented evidence. On December 9, 2013, the ZHB held a special meeting and issued its written Findings of Fact, Conclusions of Law and Decision (collectively, Decision) which upheld Ordinance No. 534. California University's local representative Robert Thorn (Thorn) was present at the December

Page 243

9, 2013 special meeting, and was handed a copy of the Decision on that date. On December 10, 2013, the ZHB mailed a copy of the Decision to Thorn and California University's counsel. The ZHB attached a letter to its mailed Decision, which advised California University that it had the right to appeal said Decision " within 30 days of receipt of this notice." Reproduced Record (R.R.) at 164a.

On January 8, 2014, California University's counsel mailed a Notice of Appeal from the ZHB's Decision to the Washington County Prothonotary's Office (Prothonotary). However, California University's counsel failed to include a filing fee for the Notice of Appeal. Upon being notified by the Prothonotary of its failure to include the filing fee, California University mailed the filing fee to the Prothonotary and the Notice of Appeal was ultimately filed on January 10, 2014 when the fee was received. On March 7, 2014, the Borough and the ZHB filed a motion to quash the appeal for untimeliness, which the trial court granted on April 25, 2014. California University appealed to this Court.[2]

California University argues that it filed a timely appeal. Specifically, California University contends that assuming arguendo the appeal deadline was January 9, 2014,[3] the Notice of Appeal was received by the Prothonotary on January 9, 2014, and thus was timely filed. We disagree.

Section 1002-A of the [Pennsylvania Municipalities Planning Code (]MPC)[4] states that all appeals from land use decisions must be filed within thirty days after entry of the decision. Section 2 of the Act of November 26, 1982 (Filing Fee Act), P.L. 744, 42 P.S. § 21072, states that '[f]iling shall mean and include docketing, entering, indexing and filing.' The filing fee is a statutory requirement, [S]ection 1725 of the Judicial Code, 42 Pa.C.S. § 1725, and, pursuant to [S]ection 3(b) of the Filing ...

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