Posted by: Patricia Salkin | December 9, 2007

PA Court Finds that Failure to Submit Required Fee with Filing of Appeal is a Jurisdictional Flaw

In addition to mastering the substantive areas in land use law, lawyers practicing in this field must also remember state procedural issues that can sometimes cause cases to be dismissed without an opportunity for courts to address the substantive merits of a claim. Such was the situation in a recent Pennsylvania case where the appellants forgot to include the required filing fee with their notice of appeal. PA State statute (42 Pa. C.S. sec. 1725) requires the payment of filing fees to commence an action.  To challenge the zoning board’s granting of a variance, the appellants submitted a timely notice of appeal to the trial court and to the all of the parties, but they inadvertently omitted the required filing fee.  Upon receipt, the prothonotary returned the document with a notice explaining that the fee was not enclosed.  The appellants then returned the appeal with the required filing fee, which was docketed and date stamped just past the 30 day statute of limitations for appeal of the zoning board decision. A motion was filed to strike the appeal on the ground that it was not timely filed, and the appellants argued that it had arrived at the Courthouse before the 30 day time limit, and although the filing fee was not included at the time, all of the parties received notice of the intent to appeal.  

The Court noted that according to statute, the prothonotary is not required to enter an appeal on the docket until the filing fee has been paid, and here the appellants failed to satisfy the statutory filing fee requirement within the required 30-day period. The Court concluded that “Failure to perfect an appeal within the time allowed by statute is a defect in the proceeding of which the appellate court must take notice…We have no power to extend the time limit for the filing of an appeal.”  

Southern Chester County Concerned Citizens Organization v. Zoning Board of Lower Oxford, 2007 WL 4192007 (Pa. Cmwlth. 11/29/2007).  The opinion can also be accessed at:

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