62 Pa. Commw. 620 | Pa. Commw. Ct. | 1981
Opinion by
Howard W. Hanna, III (Appellant) appeals from an order of the Court of Common Pleas of Allegheny County which quashed his appeal from a decision of the Zoning Board of Adjustment of Pittsburgh (Board) as untimely filed.
The basis for Appellant’s appeal to the court below was the denial of his application for a variance
The appeal period in the instant case is governed by Section 5571(b) of the Judicial Code, 42 Pa. C. S. §5571 (b), which provides:
Other courts — Except as otherwise provided ... an appeal from a tribunal or other government unit to a court or from a court to an appellate court must be commenced within 30 days after the entry of the order from which the appeal is taken....
Also pertinent is Section 5572 of the Judicial Code, 42 Pa. C. S. §5572, which states:
The date of service of an order of a government unit, which shall be the date of mailing if service is by mail, shall be deemed to be the date of entry of the order for the purposes of this subchapter. (Emphasis added.)
Appellant argues before this Court, however, that since the Board has no record of the date its decision was actually mailed, the date of Appellant’s receipt of the decision, should commence the appeal period. Furthermore, since Appellant alleged in his appeal to the common pleas court that he received the Board’s decision within 30 days of the filing of his appeal, he argues the appeal should not be quashed.
The Board argues, on the other hand, that the transmittal letter which was dated December 4, 1980, and a copy of which was attached to Appellant’s appeal petition, provides presumptive evidence that the decision was mailed on that date. The Board contends that it was Appellant’s duty to rebut this evidence of mailing and that Appellant failed to sustain his burden. The Board further argues that even accepting Appellant’s allegation that he received the decision on December 15, 1980 (a Monday), the decision would have to have been mailed by the Board no later than Friday, December 12, the last weekly business day of the Board. Therefore, the Board argues that the appeal, filed on January 13, 1981, was untimely and that Appellant’s argument to the contrary is not supported by his own averments.
We believe that our disposition of this appeal is controlled by the Pennsylvania Supreme Court’s recent decision in Schmidt v. Commonwealth of Pennsylvania, Pa. , 433 A.2d 456 (1981). In Schmidt the Supreme Court interpreted Section 234 of the Tax Reform Code of 1971 (Code),
In interpreting the appeal provision in the Code, the Supreme Court stated :
Certainly, it is reasonable for the legislature to provide that the date of mailing of a reassessment decision shall commence the period for appeal. Implicit, however, is the duty of the Department to advise the taxpayer of the date of mailing. Without such notification, a taxpayer can have no reliable basis for knowing the number of days remaining in which to file a petition for review.... In the instant case, the reassessment decision mailed to appellant indicated a decision date of March 21, 1978. Notwithstanding, appellant cannot be charged with the presumption that such was also the date of mailing. (Emphasis in original.)
Schmidt, Pa. at , 433 A.2d at 458.
We think the Supreme Court’s reasoning in Schmidt is equally applicable to an interpretation of Sections 5571(b) and 5572 of the Judicial Code. We believe that it was incumbent on the Board to include in the notification of its decision the actual date on which the decision was mailed to Appellant. We must further conclude that the date on the transmittal letter did not satisfy the Board’s burden of proving that Appellant had notice of the date on which the decision was mailed. As was said in Schmidt, “Indeed, a tax
Furthermore, even though it was represented to the trial judge that the envelope containing the decision in the instant case was routinely destroyed by the Appellant, we note that the Board’s duty to proyide notification of the mailing date is not satisfied by a postmark. “[PJostmarks are so frequently illegible that they are not to be regarded as a substitute for formal notification of the date in question on the decision or transmittal letter.” Schmidt, Pa. at , 433 A.2d at 458.
Finally, we miist also reject the Board’s contention that Appellant’s case is defeated by his own averments. We do not interpret the Supreme Court’s reasoning in Schmidt to require that Appellant calculate, after receiving notice of a decision, the date on which that notice was probably mailed. Bather, the burden is placed on the Board to provide formal notification of the relevant date. As we have previously noted, the trial judge placed the burden on the Appellant to show when the decision was received. This was error. Since there is nothing in the record which would indicate when the decision was mailed, the appeal should not
We, accordingly, reverse the order of the court below and remand for further proceedings.
Order
And Now, this 25th day of November, 1981, the order of the Court of Common Pleas of Allegheny County, dated January 30,1981 is hereby reversed and the matter is remanded for further proceedings.
Appellant requested a variance to permit occupancy of a 2%-story structure as a three-family dwelling. The structure is located in an B.-2 zoning district which permits single or two-family dwellings.
Appellant’s brief informs us that the date of receipt was amended to read December 15, 1980 at the proceeding held before the court below on January 28, 1981.
The action of the common pleas court in issuing the rule sua sponte was proper since the failure to timely file an appeal deprives a court of its jurisdiction. See Szura v. Zoning Hearing Board of Wyoming Borough, 40 Pa. Commonwealth Ct. 172, 397 A.2d 33 (1979).
By our calculation, the date of mailing would have to have been on or after December 14, 1980 in order to render the appeal timely. The common pleas court refers to December 17, 1980 as the relevant date, although the record discloses no reason for that reference.
Act of March 4, 1971, P.L. 6.