69 Pa. Commw. 32 | Pa. Commw. Ct. | 1982
Opinion by
William Farrell (Appellant) has appealed from an order of the Court of Common Pleas of Montgomery County which dismissed his appeal from a decision of the Worcester Township Zoning Hearing Board (Board) as untimely filed.
The subject of the zoning appeal in the court of common pleas was an order issued by the Board on November 25, 1980 which denied Appellant’s application for a use permit.
The time allowed for an appeal to the common pleas court in the case is governed by Section 5571(b) of the Judicial Code (Code), 42 Pa. C. S. §5571(b), which provides that:
[A]n appeal from a tribunal or other government unit to a court ... must be commenced within 30 days after the entry of the order from which the appeal is taken....
Section 5572 of the Code, 42 Pa. C. S. §5572, establishes that the date on which the appeal period , begins is the “date of service of an order of a government unit, which shall be the date of mailing if service is by mail.” Although the parties apparently agreed before the common pleas court that the appeal period here ended on December 26, there is no indication in the record as to the date on which the board mailed its decision to Appellant. We note that Appellant stated in his brief filed with the common pleas court that “the date of mailing is unknown to Appellant.” We have recently held that it is the Board’s responsibility to provide notice to an applicant of the actual mailing date of its decision. Hanna v. Zoning Board of Adjustment of Pittsburgh, 62 Pa. Commonwealth Ct. 620, 437 A.2d 115 (1981). Absent evidence of the mailing date or other date of service, we are unable to determine when the appeal period commenced or if
Accepting November 25 as the date on which the appeal period commenced, the final date for timely filing of the subject appeal would have been Friday, December 26.
We note that this case involves a deviation from the normal fact situation where an appellant claims entitlement, due to fraud or its equivalent, to pursue an appeal which has admittedly been filed beyond the appeal period. See e.g., Girolamo Appeal, 49 Pa. Commonwealth Ct. 159, 410 A.2d 940 (1980); Del
In its opinion, the court of common pleas sets forth Montgomery County Rule of Civil Procedure 1(a) which provides that practice and procedure in the court of common pleas involving appeals from local agencies shall conform to the rules “relating to appeals from administrative agencies of the Commonwealth.” Pertinent rules thus adopted by Montgomery County appear at Chapter 15 of the Pennsylvania Rules of Appellate Procedure. Particularly relevant is Pa. R.A.P. 1514(a)
The petition for review ... shall be filed with the prothonotary of the appellate court.... Upon actual receipt of the petition for review*37 the prothonotary shall immediately stamp it with the date of actual receipt. That date ... shall constitute the date when review was sought, which date shall be shown on the docket. (Emphasis added.)
Appellant argues that this rule was not complied with by court officials and that its violation constituted a breakdown in the court’s operations. In support of this position, Appellant first presented deposition testimony by his counsel’s secretary that she placed the appeal notice in an office building mailbox before noon on December 22, 1980.
In spite of this evidence the court of common pleas concluded that, “An office slowdown over the Christmas holiday does not rise to the level of
The order of the court of common pleas is reversed and remanded for further proceedings consistent with this opinion.
Order
It is ordered that the order of the Court of Common Pleas of Montgomery County, dated July 28, 1981, is reversed and the matter is remanded for further proceedings consistent with the foregoing opinion.
The permit, if granted, would have allowed Appellant to rent trailers, vans and trucks from a gasoline station which he owns and operates.
Section 1908 of the Statutory Construction Act of 1972, 1 Pa. C. S. §1908, provides that statutory time periods are to be calculated by excluding the first and including the last day of the period and by omitting any legal holiday which occurs on the last day of the appeal period. Since the thirtieth day of the appeal period here fell on December 25, a legal holiday, Appellant would have had until December 26 to file his appeal.
The court of common pleas relied on Pa. R.A.P. 905(a) in its opinion; however, that rule relates to appellate review of lower court determinations, rather than administrative agency adjudications.
The Board attempted to refute this testimony by introducing a postmarked envelope in which a copy of the notice of appeal was mailed to the Board’s counsel. Both notices were apparently mailed at the same time. The Board’s counsel argues that the envelope mailed to the Board was postmarked December 27 thus tending to show that the appeal notice to the court was also mailed after the appeal period ended. Since the common pleas court did not mention the envelope in its opinion and we find the postmark to be illegible, we must reject the Board’s argument.