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Horn v. Township of Hilltown

Supreme Court of Pennsylvania
May 13, 1975
461 Pa. 745 (Pa. 1975)

Summary

zoning board is governmental decision-making body which must avoid appearance of possible prejudice; no actual harm necessary to show denial of due process

Summary of this case from Pascal v. City of Pittsburgh Zoning Bd. of Adjustment

Opinion

Argued April 8, 1975.

Decided May 13, 1975.

Appeal from the Common Pleas Court, Bucks County, at Nos. 72-1341-05-06, Issac S. Garb, J.

John J. Lombard, Jr., Alan C. Kauffman, John P. McKelligott, Obermayer, Rebmann, Maxwell Hippel, Charles M. Marshall, Eastburn Gray, Doylestown, F. E. Hahn, Jr., Philadelphia, for appellants.

Francis X. Grabowski, Jaczun Grabowski, Perkasie, for appellee.

Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.


OPINION OF THE COURT


This appeal arises from an Order of the Commonwealth Court which affirmed a decision of the Zoning Hearing Board of Hilltown Township denying appellants' application for a zoning variance. We granted allocatur to consider the single issue of whether appellants were denied due process of law at the zoning board hearing.

The facts surrounding the above issue are as follows: Appellants, Vernon and Edith Horn, are the owners of a piece of property, located in Bucks County, which they purchased in 1968. On the property is located a stone quarry that had not been in operation for some time prior to appellants' acquisition. In 1959, appellee, the Township of Hilltown, passed a zoning ordinance that prohibited quarry operations in the area wherein appellants' property was located. Appellants operated the quarry and an asphalt plant on the quarry site. As a result of these operations, the township zoning officer issued a cease and desist order which appellants disregarded, and the township thereafter filed a complaint in equity, through its solicitor, seeking an injunction against appellants. After a series of hearings, the parties to this appeal agreed that the entire matter should be submitted to the Zoning Hearing Board of Hilltown Township for a decision.

The procedure followed at the zoning hearing board is the subject of this appeal. At the hearing board, the township was represented by its solicitor, Charles Wilson, who also served at the hearing as the zoning board's solicitor. Mr. Wilson conducted the meeting and ruled on evidence presented by appellants and on objections made to the township's evidence presented by Mr. Wilson, himself, when an objection was interposed by appellants. Thereafter, Mr. Wilson, as the zoning board's solicitor, advised the board in legal matters concerning appellants' case.

We granted allocatur to determine whether the above procedure was a denial of due process, absent a showing of actual harm to appellants. In our opinion there need not be a showing of harm in the instant case to sustain a finding of a denial of due process.

We have faced a similar issue in cases not factually similar to that of the instant case, and have found a denial of due process absent proof of harm. In Gardner v. Repasky, 434 Pa. 126, 252 A.2d 704 (1969), we stated:

"Another independent ground for reversal is the position of conflict occupied by John Repasky. Repasky was a member of the Fire Board which originally complained about appellant and a member of the Civil Service Commission which heard appellant's appeal. (He cast the deciding vote for suspension in a 2-1 Commission decision). Appellees claim that no bias in fact has been shown and that Repasky took no part in making the original complaint. This is not to the point. '. . . [ A] ny tribunal permitted by law to try cases and controversies must not only be unbiased but must avoid even the appearance of bias.' Commonwealth Coatings Corp. v. Continental Casualty, 393 U.S. 145-[50] 89 S.Ct. 337, 21 L.Ed.2d 301 . . . (1968)." 434 Pa. at pages 129-30, 252 A.2d at pages 705-706. (Emphasis supplied.)

Moreover, in Schlesinger Appeal, 404 Pa. 584, 172 A.2d 835 (1961), this court, quoting from In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955), held:

" 'A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. . . . This Court has said . . . that "every procedure which would offer a possible temptation to the average man as a judge . . . not to hold the balance nice, clear, and true between the State and the accused, denies the latter due process of law." Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444, 71 L.Ed. 749.' "

In the case at bar, while we are not faced with a tribunal that has allegedly denied due process to a litigant, we are presented with a governmental body charged with certain decision-making functions that must avoid the appearance of possible prejudice, be it from its members or from those who advise it or represent parties before it. In the instant case, the same solicitor represented both the zoning hearing board and the township, which was opposing appellants' application for a zoning variance. While no prejudice has been shown by this conflict of interest, it is our opinion that such a procedure is susceptible to prejudice and, therefore, must be prohibited.

Order reversed and case remanded for proceedings consistent with this opinion.


Summaries of

Horn v. Township of Hilltown

Supreme Court of Pennsylvania
May 13, 1975
461 Pa. 745 (Pa. 1975)

zoning board is governmental decision-making body which must avoid appearance of possible prejudice; no actual harm necessary to show denial of due process

Summary of this case from Pascal v. City of Pittsburgh Zoning Bd. of Adjustment

In Horn v. Township of Hilltown, 461 Pa. 745, 337 A.2d 858 (1975), the same attorney represented both the zoning board and the township which had opposed the appellant's request for a variance.

Summary of this case from Com., Dept. of Ins. v. Am. Bankers Ins. Co.

In Horn the attorney involved was: (1) making objections to the evidence offered by his opponent, and then ruling on his own objections; (2) offering evidence to which his opponent objected and then ruling on the objection to his proffered evidence; and (3) advising the hearing panel concerning the law during the post-hearing process of deciding the merits of his opponent's case.

Summary of this case from Com. Pa. Human Rel. Com'n v. Feeser

In Horn, the same solicitor served as advisor to the zoning hearing board which heard an appeal and also represented the township in opposing the appellant's position on the appeal with respect to appellant's application for a zoning license.

Summary of this case from TEXACO REFINING v. ASSESSMENT BD. OF APP

zoning board member

Summary of this case from Pennsylvania Power Light v. Gulf Oil

In Horn the Supreme Court held that the procedure in which the same solicitor represented the zoning hearing board and the township opposed the application for a variance was susceptible to prejudice and must be prohibited.

Summary of this case from Hovnanian v. Newtown Tp. Bd. of Sup'rs

In Horn v. Township of Hilltown, 461 Pa. 745, 337 A.2d 858 (1975), the Supreme Court held that due process was denied where an individual served as a zoning board solicitor and subsequently appeared before the same board as the municipality's solicitor to oppose an application for a variance.

Summary of this case from Prin v. Council of the Municipality of Monroeville

In Horn, the Court held that it was improper for the same individual to serve as a zoning board's solicitor, and to appear before that same zoning board as the municipality's solicitor to oppose an application for a variance.

Summary of this case from Newtown Tp. Board of Sup'rs v. Greater Media

In Horn, our Supreme Court found that it was a denial of due process for the same solicitor to represent both the zoning hearing board and the township at a zoning board hearing where the township was opposed to an application for a zoning variance.

Summary of this case from Williams v. Salem Twp. et al

In Horn the same attorney was making objections to evidence offered by his opponent and then ruling on the objections, offering evidence to which his opponent objected and then ruling on the objections, and advising the Board during the decision making process.

Summary of this case from Spencer v. Hemlock Township

In Horn, supra, at least the decision was made by the Zoning Hearing Board, a body different from the Township governing body. Here the School Board proposed the dismissal, its lawyer presented the case in favor of dismissal and the School Board decided the case.

Summary of this case from In Re: Appeal of Feldman

In Horn, supra, the attorney representing the township in a zoning matter also represented the Zoning Hearing Board. This attorney conducted the meeting, ruled on evidence presented by the contestants, and also ruled on objections made to the evidence which he presented.

Summary of this case from Sharon City School Dist. v. Hudson

In Horn, our Supreme Court held that the commingling of functions described above denied due process to the applicant for a variance.

Summary of this case from Dept. Education v. Oxford Schools

In Horn, the same attorney represented both the Zoning Hearing Board of Hilltown Township and Hilltown Township itself which was opposing Horn's application for a variance.

Summary of this case from Dept. Education v. Oxford Schools

In Horn v. Township of Hilltown, ___ Pa. ___, 337 A.2d 858 (1975), our Supreme Court held that the possibility of prejudice in proceedings in which the same counsel represented both a zoning hearing board and a municipality having an interest in the litigation was a denial of due process.

Summary of this case from In Re: Appeal of Feldman
Case details for

Horn v. Township of Hilltown

Case Details

Full title:Vernon and Edith HORN, Appellants, v. The TOWNSHIP OF HILLTOWN

Court:Supreme Court of Pennsylvania

Date published: May 13, 1975

Citations

461 Pa. 745 (Pa. 1975)
337 A.2d 858

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