       IN THE COMMONWEALTH COURT OF PENNSYLVANIA



John Kocher d/b/a John’s Auto Body,    :
                                       :
                        Appellant      :
                                       :
            v.                         :   No. 81 C.D. 2015
                                       :
Zoning Hearing Board of                :   Submitted: December 7, 2015
Wilkes-Barre Township, Luzerne         :
County, Pennsylvania, and              :
Wilkes-Barre Township School           :
District and George Gale and Tara      :
Gale                                   :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                           FILED: February 9, 2016

      John Kocher d/b/a John’s Auto Body (Kocher) appeals from the December
16, 2014 order of the Court of Common Pleas of Luzerne County (common pleas)
affirming the decision of the Zoning Hearing Board (ZHB) of Wilkes-Barre
Township (Township) finding Kocher in violation of the Township’s zoning
ordinance. Kocher argues on appeal that common pleas erred and/or abused its
discretion when it upheld the Township Zoning Officer’s finding that Kocher was
in violation of Sections 716 J and 716 K of the Township’s zoning ordinance.
Unfortunately, however, Kocher’s initial appeal to the ZHB was untimely, thereby
depriving the ZHB and any subsequent reviewing tribunal of subject matter
jurisdiction. Accordingly, we dismiss Kocher’s appeal, vacate common pleas’
December 16, 2014 order and vacate the ZHB’s decision as it lacked jurisdiction
over the untimely appeal.


       Kocher owns and operates an auto-body shop/salvage/recycling business in
the Township on various parcels of real property he has purchased over a series of
years. The Township received a number of citizen complaints about Kocher’s
business.     In response to the complaints, the Township’s Zoning & Code
Enforcement Officer, Thomas Zedolik, inspected the property with the Township
Solicitor on December 10, 2013.1 By letter to Kocher dated December 12, 2013
and sent via certified mail, Zoning Officer Zedolik described the December 10

       1
          This was not the first time Kocher’s property fell under Zedolik’s scrutiny. By letter
dated May 30, 2012, Zedolik advised Kocher that the property Kocher recently purchased in the
Township is zoned R-2 Residential and that the uses of the property are limited to those listed in
the Township’s zoning ordinance absent approval by the Township. In a follow up letter dated
June 1, 2012, Zedolik stated his understanding that Kocher’s business was authorized by a
certificate of non-conformance issued in 2002. Zedolik stated further that since 2002 Kocher
had purchased other property, substantially expanded his business without the required zoning
approvals, and outlined resulting violations that must be addressed. Kocher replied through
counsel by letter dated August 17, 2012. Kocher’s counsel briefly recapped a meeting at
Kocher’s business attended by him, Kocher, Zedolik and the Township Solicitor. Kocher’s
counsel opined after review that the property had been utilized as a non-conforming commercial
use for approximately 50 years and that Kocher’s use of the property to expand his business from
a neighboring property simply continued the pre-existing non-conforming use. The Township
Solicitor subsequently advised Zedolik by letter dated August 30, 2012 that he agreed with
Kocher’s counsel’s analysis regarding the non-conforming use. Thereafter, Zedolik addressed a
memorandum to the Township advising that he had met with Kocher and various counsel as to
complaints received regarding Kocher’s business and that as a result “Mr. Kocher’s business is
not in violation of the townships [sic] zoning ordinance and can continue to operate as is.”
Zedolik further advised that “[a]nyone can appeal this decision.” (Zedolik’s September 12, 2012
letter, R.R. at 11a.) There is no record of any appeal of Zedolik’s decision including by any
party in this case.

                                                2
inspection and meeting with Kocher, notifying him that “we” concluded that
Kocher had expanded his business without complying with the Township’s zoning
ordinance resulting in violations of Sections 716 J (providing that junk shall not be
stored within 150 feet of any adjoining property line or nearer than 100 feet to any
adjoining street or abutting street)2 and 716 K (all junk yards shall be completely
screened from view on all sides by a buffer area and the required fence shall meet
the required setback distances for the subject Zoning District (M-3)).3 (Zedolik’s
December 12, 2013 letter to Kocher, R.R. at 25a-29a.) The letter further contains a
statement that Kocher had 30 days from the date of receipt of the letter to either
appeal the decision to the ZHB or respond in writing about how he intended to
address the violations in a timely manner and, that if he failed to respond, a citation
would be filed with the District Justice.


       Although the certified mail receipt is not part of the record, the record
conclusively reflects that Kocher received Zedolik’s December 12, 2013 letter on
December 13, 2013. (Zedolik’s Notes, R.R. at 34a; ZHB Hr’g Tr., March 11,
2014, at 55-62, 69, R.R. at 78a-79a, 81a; Trial Ct. Hr’g Tr., September 22, 2014 at
39-46, R.R at 130a-31a.) By letter to Zedolik dated January 10, 2014, Kocher’s
counsel advised that “if the terms of your December 12, 2013 letter constitute a
formal decision by your office, based upon your finding of facts and applying the

       2
          Section 716 J provides that “Junk shall not be stored within one hundred fifty (150) feet
of any adjoining property line or nearer than one hundred (100) feet to any adjoining street or
abutting street.” Wilkes Barre Twp., Pa., Zoning Ordinance § 716 J.
        3
          Section 716(k) provides that “All junk yards shall be completely screened from view on
all sides by a buffer area as so defined in Article 2 of this Ordinance. The required fence shall [ ]
meet the required setback distances for the subject Zoning District.” Wilkes Barre Twp., Pa.,
Zoning Ordinance § 716 K.

                                                 3
zoning law to those facts, thereby creating a ‘decision’ under the Pennsylvania
Municipalities Planning Code, then in such case this letter shall constitute an
appeal of your December 12, 2013 letter.” (Kocher’s Counsel’s January 10, 2014
letter to Zedolik, R.R. at 31a.)4 The January 10 letter further discussed how
Kocher proposed to deal with the violations outlined in Zedolik’s December 12,
2013 letter. Although the letter from Kocher’s counsel is dated January 10, 2014,
the record establishes that it was postmarked on January 13, 2014. (Zedolik’s
Notes, R.R. at 34a; Postmarked Envelope, R.R. at 35a.)


       Zedolik received the January 10 letter on January 14, 2014 and responded on
January 15, 2014, advising Kocher’s counsel that the letter was untimely based on
the 30 day appeal period in the Municipalities Planning Code (MPC).5 However,
Zedolik stated further that “[a]fter speaking with [the Township solicitor] I have
decided to allow an additional five day period for you to file an appeal on behalf of
your client to appear before the [ZHB].” (Zedolik’s January 15, 2014 letter to
Kocher’s Counsel, R.R. at 33a; ZHB Hr’g Tr. at 55-62, 69, R.R. at 78a-79a, 81a.)
Kocher filed an Application for Appeal and Hearing on the ZHB’s form on January
29, 2014. (Appeal Form, R.R. at 37a-39a.)


       The ZHB held a hearing on Kocher’s appeal of the December 12, 2013 letter
on March 11, 2014. By unanimous vote immediately following the hearing, the

       4
        The January 10, 2014 letter consists of two pages but only the first is included in the
reproduced record. The complete letter is found in the record certified to this Court by common
pleas.

       5
           Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11202.



                                                4
ZHB upheld Zedolik’s December 12, 2013 decision that Kocher’s business was in
violation of sections 716 J and 716 K of the Township’s zoning ordinance. Kocher
appealed. On April 9, 2014, common pleas, pursuant to Section 1003-A(b) of the
MPC,6 53 P.S. § 11003-A(b), directed the ZHB to certify the record within 20
days. The ZHB on June 13, 2014 filed the certified record along with findings of
fact and conclusions of law. Kocher, on July 14, 2014, filed a petition asking
common pleas to overrule and dismiss the ZHB’s decision on the basis that the
ZHB failed to certify the record to the court within 20 days, seeking a stay of the
ZHB’s decision pending disposition of his appeal, and asking common pleas to
receive additional evidence. Common pleas convened a hearing on September 22,
2014.


        Common pleas heard argument about the necessity for taking additional
evidence and Kocher’s counsel raised the ZHB’s tardy filing of the certified
record. After further discussion, common pleas determined to take additional
testimony and decide the appeal de novo. The timeliness of Kocher’s appeal to the
ZHB was the subject of argument and testimony.


        Common pleas, in an Opinion and Order issued on December 16, 2014
denied Kocher’s appeal and affirmed the ZHB’s decision upholding Zedolik’s
finding that Kocher was in violation of Sections 716 J and 716 K of the Township
zoning ordinance. Common pleas did not address the timeliness of Kocher’s
appeal to the ZHB or the effect, if any, of the ZHB’s failure to file the certified
record within 20 days. This appeal followed.

        6
            Added by Section 101 of the Act of December 21, 1988, P.L. 1329.

                                                 5
       Kocher raises four issues before this Court. He asserts that common pleas
applied an incorrect standard of review, and that common pleas erred or abused its
discretion in three different ways when it affirmed the ZHB’s decision: 1) because
there was no basis in the record on which it could do so; 2) because the action
underlying the ZHB’s decision was barred as an attempt to re-litigate the issue of
Kocher’s use of his property; and 3) because the ZHB’s decision should have been
dismissed where the ZHB did not file a certified copy of the record with the trial
court within 20 days as required by Section 1003-A(b) of the MPC. In addition,
the Township seeks counsel fees from Kocher pursuant to Rule 2744 of the
Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 2744.


       We cannot reach these issues because, as we noted earlier, Kocher’s appeal
to the ZHB was untimely. Section 914.1(b) of the MPC,7 53 P.S. § 10914.1(b),
provides that “[a]ll appeals from determinations adverse to the landowners shall be
filed by the landowner within 30 days after notice of the determination is issued.”
As described above, the January 10, 2014 letter from Kocher’s counsel was
received by the zoning officer on January 14, 2014, more than 30 days from
Kocher’s receipt of the December 12, 2013 letter advising him that his business
was in violation of the setback and fencing provisions of the Township’s zoning
ordinance.8 Zedolik decided to accept the appeal after a discussion with the
Township Solicitor. As noted above, Kocher did not file his Application for

       7
           Added by Section 95 of the Act of December 21, 1988, P.L. 1329.

       8
         Zedolik’s December 12, 2013 letter was received by Kocher on December 13. Thirty
days from that date fell on Sunday, January 12, 2014 so an appeal received on Monday, January
13 would be timely. Zedolik received the January 10, 2014 letter that was postmarked January
13 on January 14, 2014, 32 days after Kocher’s receipt of Zedolik’s letter and one day late.

                                                6
Appeal and Hearing on the ZHB’s form until January 29, 2014. To the extent the
January 10, 2014 letter would be considered sufficient to toll the appeal period,
that letter was received on the thirty-second day, which was one day late. The
Application for Appeal was filed 46 days after Kocher’s receipt of the December
12, 2013 letter.


       Statutory appeal periods are mandatory and may not be extended as a matter
of grace or mere indulgence. Bass v. Commonwealth, 401 A.2d 1133, 1134 (Pa.
1979); Hudson v. Department of Transportation, Bureau of Driver Licensing, 830
A.2d 594, 598 (Pa. Cmwlth. 2003). Appeals filed beyond the appeal period are
untimely and deprive the reviewing tribunal of subject matter jurisdiction over the
appeals. Hudson, 830 A.2d at 598. Questions of subject matter jurisdiction may
be raised at any time, even on appeal, by the parties, or by the court on its own
motion. Id. By permitting Kocher to file a late appeal, the ZHB, through Zedolik,
enlarged the appeal period, thereby extending to itself jurisdiction it would not
otherwise have. Although Kocher’s counsel filed his appeal just one day late, the
late filing is a jurisdictional defect that appellate courts may not overlook.
Rostosky v. Department of Environmental. Resources, 364 A.2d 761, 763 (Pa.
Cmwlth. 1976).9        Common pleas’ review was a nullity as the ZHB lacked
jurisdiction over Kocher’s initial appeal and we must therefore vacate that Order

       9
         Notwithstanding that the issue was raised at every level in this litigation, Kocher’s
counsel never suggested in the alternative that Kocher should be allowed an appeal nunc pro
tunc. From the record there do not appear to be any extraordinary circumstances involving fraud
or an administrative or judicial breakdown, and neither Kocher nor his counsel suggested that the
untimely filing arose from non-negligent circumstances related to Kocher’s attorney or to Kocher
himself. Bass, 401 A.2d at 1135.



                                               7
and the ZHB’s decision accordingly. 10 We also decline to award the fees sought
by the Township.11


       10
           Even if Kocher’s appeal to the ZHB had been timely, we would have affirmed common
pleas based upon our review of the record. Where the trial court takes evidence, it hears the
matter de novo, and our review is limited to determining whether the trial court committed an
abuse of discretion or an error of law. Bailey v. Zoning Board of Adjustment, 780 A.2d 809, 811
n.3 (Pa. Cmwlth. 2001). We find no error in common pleas’ review of Kocher’s appeal.
Common pleas’ findings and conclusions of law are not duplicative of the ZHB’s. Some of the
findings are based on Kocher’s testimony before common pleas and some on the transcript and
evidence before the ZHB, all of which were part of the record before the court. Common pleas
in its opinion correctly states that the de novo standard applies. As to Kocher’s other assertions
of error, we would conclude that: 1) there is substantial evidence in the record to support a
finding that Kocher violated the relevant provisions of the zoning ordinance; and 2) Zedolik’s
December 12, 2013 letter as the action underlying the ZHB’s decision was not barred as an
attempt to re-litigate the issue of Kocher’s use of his property where that use was permitted by
Zedolik’s September 12, 2012 letter. Our close reading of all of the correspondence of record
supports the conclusion that the discussion leading up to the September 12, 2012 letter was in the
context of Kocher’s right to continuation of the non-conforming use of his property for the
storage and repair of automobiles. However, the continuation of a non-conforming use does not
excuse compliance with the fencing and setback requirements of the zoning ordinance. With
regard to the ZHB’s failure to file the certified copy of the record with the trial court within 20
days, this Court has held that the 20 day filing timeframe in the predecessor version of Section
1003-A is directory rather than mandatory. See Vacca v. Zoning Hearing Board of Borough of
Dormont, 475 A.2d 1329, 1331 (Pa. Cmwlth. 1984) (court held that Section 1008(2) is directory
rather than mandatory where ZHB did not file the record with the court of common pleas within
twenty days, as required by former Section 1008(2) of MPC, 53 P.S. § 11008(2), citing Appeal
of Crossley, 432 A.2d 263 (Pa. Cmwlth. 1981)). Thus, without an express legislative declaration
of deemed approval, procedural tardiness does not result in a favorable decision for the applicant.
The same result is appropriate here.

       11
          We will not award fees here. First, it is unclear whether it is proper procedure to ask
for counsel fees pursuant to Rule 2744 in a brief. See Pa. Appellate Practice vol. 20A § 2744:10;
Pa. R.A.P. 2751 (Applications for Further Costs and Damages). Second, common pleas heard
the matter de novo and absent the timeliness issue this Court would be reviewing common pleas’
decision – not the ZHB’s. Common pleas did not address all the issues raised by Kocher, such as
the 20 day period for filing the record, and thus we cannot say that his appeal is frivolous, or that
counsel’s conduct is dilatory, obdurate or vexatious.



                                                 8
      For these reasons, we dismiss Kocher’s appeal of the trial court’s Order
affirming the ZHB’s decision finding Kocher in violation of the Township’s
zoning ordinance. We further vacate the trial court’s December 16, 2014 Order
and the ZHB’s decision as the ZHB lacked jurisdiction over the untimely appeal.




                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge




                                        9
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



John Kocher d/b/a John’s Auto Body,       :
                                          :
                          Appellant       :
                                          :
             v.                           :   No. 81 C.D. 2015
                                          :
Zoning Hearing Board of                   :
Wilkes-Barre Township, Luzerne            :
County, Pennsylvania, and                 :
Wilkes-Barre Township School              :
District and George Gale and Tara         :
Gale                                      :


                                      ORDER


      NOW, February 9, 2016, the appeal of the December 16, 2014 Order of the

Court of Common Pleas of Luzerne County, entered in the above-captioned matter,

is DISMISSED. The December 16, 2014 Order is VACATED as a nullity and the

decision of the Zoning Hearing Board of Wilkes-Barre Township is VACATED

for lack of jurisdiction over the untimely appeal.




                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge
