68 Pa. Commw. 239 | Pa. Commw. Ct. | 1982
Lead Opinion
Opinion by
The genesis of this case was a municipal decision to vacate a portion of a certain public road in South Whitehall Township, Lehigh County. The appellants herein, Jane Smith and George Whitner, undertook to challenge the vacation; but they failed to pursue their statutory remedies within the time period fixed by law. When Smith and Whitner sought leave to pursue the remedies nunc pro tunc, the Court of Common Pleas of Lehigh County denied their application. From that order the instant appeal followed.
South Whitehall Township is a township of the first class, and has within it a public highway named
A portion of Dorney Park Road, about 770 feet of it, bisects an amusement complex called Dorney Park, which is owned by the Dorney Park Coaster Company (Company). The Company petitioned to have that part of the Road vacated.
In early 1977 the Board of Commissioners of South Whitehall Township (Commissioners), pursuant to the Company’s petition, advertised a public meeting to consider the vacation of that part of the Road which abutted the Company’s land. A public meeting was held in March of 1977; and witnesses for the Company and members of the public gave testimony for and against the proposed vacation.
The Commissioners held another public meeting in May 1977, at which time they accepted the recommendation of the township engineer that the Road portion in question be vacated. In June 1977 Jane Smith, together with other objectors, filed an action in equity seeking to bar the vacation of the Road; that suit, however, was dismissed.
On January 8,1979, almost two years after the last public meeting about the Road, the Commissioners held another public meeting, at which they enacted an ordinance to vacate the portion of the Road that abutted the Company’s land. By a written document also dated January 8,1979, the Commissioners entered into
In February 1979, objectors Jane Smith and George Whitner engaged attorney James F. Diefenderfer to represent them in mounting a legal challenge to the vacation of the Road. Attorney Diefenderfer advised his clients that, pursuant to The First Class Township Code,
Diefenderfer immediately inquired of the Clerk of Court if the Commissioners had filed their report concerning the Road, but learned that as of February 26, 1979, the report had not been filed. The attorney then requested the Clerk of Court to inform him when the report was filed; and the Clerk stated that he would do so. However, it appears from the record in this case that Mr. Diefenderfer never asked the Commissioners or the township’s solicitor to give him notice of when the report was to be filed.
On March 9,1979, the Commissioners filed their report with the Clerk of Court. The Clerk, however, failed .to advise Diefenderfer of the filing. Moreover, there was no public advertisement or any other form of notice that the report had been filed.
According to attorney Diefenderfer, he did not learn until April 17, 1979 that the report had been filed. On April 20, 1979, the objectors petitioned the Court of Common Pleas of Lehigh County for leave to file their challenges nunc pro tunc. On April 17,1980, that court denied the petition and thus induced the instant appeal.
Section 2009 of the Code provides as follows:
Any citizen or freeholder of the township may, within thirty days after the filing of the report of the board of commissioners, upon entering in the court sufficient surety to indemnify the board for all costs incurred in the proceedings, file exceptions to the report, together with a petition for a review. (Emphasis added.)6
In the case at bar, the Commissioners’ report was filed on March 9, 1979. The objector-appellants eoncededly failed to post a bond or file exceptions and a
It is well settled in our law that where a statute fixes the time within which an appeal may be taken, courts have no power to extend the time absent a showing of fraud, or a breakdown in the court’s operation through a default of its officers whereby a party is prejudiced. Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938); Delmont Borough Annexation Case, 2 Pa. Commonwealth Ct. 496, 276 A.2d 549 (1971).
In the view of the court below, the objectors’ rights under Section 2009 are analogous to an appeal. In denying the objectors’ petition for leave to proceed nunc pro tunc, the lower court observed that neither Section 2009 nor any other provision of The First Class Township Code expressly requires that notice be given of the filing of the Commissioners’ report. As an additional matter, the court found that there was no showing of a local, court “custom” which w-ould have obligated the Clerk of Court to notify the objectors’ counsel that the report had been filed. Based on this reasoning, the lower court concluded that there was no fraud or breakdown in court operations as would permit extending the appeal period beyond the 30 days prescribed by Section 2009.
We agree with the lower court, that there is no express requirement in .the Code for the giving of notice that a Commissioners ’ report has been filed with the Clerk of Court. We do not agree, however, that it was the intendment of the legislature to withhold a notice requirement.
Recently, in the case of Schmidt v. Commonwealth, 495 Pa. 238, 433 A.2d 456 (1981), our state Supreme Court addressed a notice problem closely related to the one now before us. In Schmidt the Board of Finance and Revenue dismissed, as untimely, an appeal from a tax reassessment decision of the state Department of Revenue. The statute in question conferred a right to appeal such a decision to the Board of Finance and Revenue within 60 days after the date the Department mailed, to the taxpayer, notice of its reassessment decision. The Department, on March 21, 1978, mailed its decision to the taxpayer; but the accompanying letter of transmittal bore no date. On May 23, 1978, the taxpayer filed his appeal with the Board. That appeal was dismissed for exceeding the 60-day period allowed by the statute.
In Schmidt the Supreme Court reversed the dismissal because the Department had not supplied the taxpayer with the date the tax decision was mailed; that is, the taxpayer had not been notified of the date of the event that commenced the running of the allowable appeal period. After pointing out that it was reasonable for the legislature to make the 60-day ap
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.
Id), at 241, 433 A.2d at 458.
After observing that knowledge of the mailing date was essential to a taxpayer, the Court in Schmidt concluded by holding that the legislature could only have contemplated that the Department would furnish the information that was crucial to the functioning of the statutory appeal procedure.
It is our conclusion that the reasoning of the Schmidt decision applies to the case at bar. Since qualified objectors to a road vacation or 'any other road action must perfect their Section 2009 rights within 30 days after the filing of the Commissioners’ report, timely knowledge of that filing is crucial to the exercise of the appeal procedure set forth in Section 2009. Without such knowledge a qualified objector would have no way of realizing that the allowable appeal period had commenced. Of course an objector or his counsel could make periodic trips to the county courthouse, or solicit the information from some township officer, or depend upon word from some particular court employee. However, such an approach hardly seems an adequate, systematic, and orderly substitute for reasonably prompt official notice, initiated by the Commissioners themselves, that their report has been filed with the Clerk of Court. In our view, implicit in Section 2009 of The First Class Town
We do not suggest that the Commissioners must send personal notice of the filing to every “citizen and freeholder of the township.” But, we can ascertain no reason why the Commissioners cannot advertise, in an appropriate publication, the fact that the report has been filed. We recognize that such published notice would be far from perfect; yet, such an effort would be better than no notice at all.
Because the objector-appellants in the instant case were never given timely official notice that the Commissioners had filed their report, the objectors’ petition to proceed nunc pro tunc should have been granted; subject, of course, to the duty to post a bond. We, therefore, must reverse the order of the lower court and remand the case with a direction to proceed accordingly.
Order,
And Now, the 11th day of August, 1982, the order of the Court of Common Pleas of Lehigh County, dated April 17,1980, at No. 4-B-79, is hereby reversed. It is further ordered that this case be remanded to the said court to allow the appellants herein leave to proceed nunc pro tunc under the provisions of Section 2009 of The First Class Township Code, 53 P.S. §57009, subject to compliance with the bond requirement set forth in that Section.
It appears that the actual cartway is narrower.
The Road portion to be vacated was abutted only by the Company’s land. However, some of the opponents had residences on other portions of the Road, and objected to losing the Road as a complete throughway.
Act of June 24, 1931, PX. 1206, as amended, 53 P.S. §§55101 et seq.
53 P.S. §57005.
53 P.S. §57008.
53 P.S. §57009. The term “petition for a review” contained in this Section does not refer to a petition for review in the standard appellate sense. The meaning of the term relates to the fact that, in road proceedings of the type here in issue, the township Board of Commissioners performs the function of a board of viewers. Thus, the term “petition for a review” means a petition for a second “view,” or a “re-view.”
See also Hanna v. Zoning Board of Adjustment of Pittsburgh, 62 Pa. Commonwealth Ct. 620, 437 A.2d 115 (1981).
Dissenting Opinion
Dissenting Opinion by
I respectfully dissent. It is acknowledged by the parties and in the majority opinion that there is no prerequisite of notice to anybody in Section 2009 of the First Class Township Code that the report of the
The legal authority for such an extension is said by the majority to be found in Schmidt v. Commonwealth, 495 Pa. 238, 433 A.2d 456 (1981). The principal difference between that case and the one now before us is that in Schmidt there was a notice requirement; here there is none. Our Supreme Court held in Schmidt that the failure of the Department of Revenue to set forth a mailing date in its notice of reassessment was a fatal defect. In the instant case, the Appellant’s attorney knew that there would be no notice and he relied upon a Court officer to inform him when the report was filed. In Schmidt, the Court was construing a tax statute; the case before us involves the vacation of a road. Because of those substantial differences, I do not believe that Schmidt controls.
Here, the Board followed the terms of the statute pursuant to which it was acting. It was guilty of no wrong doing. The cause of the problem was understandable but hardly justifiable. Had' the attorney checked the dockets daily or had he requested the township officials to notify him when the report was filed, the case would not be before us. The majority opinion now extends this already lengthy litigation process by validating an appeal which was admittedly untimely filed. I do not believe we have sufficient grounds to do so.
Aside from what I believe to be an erroneous result in the case before us, I am greatly concerned that the
I would affirm ou the opinion of tbe trial judge.
