Zimmer v. Susquehanna County Planning Commission

*441Dissenting Opinion by

Judge Kramer:

This is yet another dissenting opinion involving this Court’s interpretation of the statutory time period within which a citizen may file an appeal. See Commonwealth of Pennsylvania, Department of Revenue v. Niemeyer Oldsmobile, Inc., 12 Pa. Commonwealth Ct. 388, 394, 316 A. 2d 152, 155 (1974) (dissenting opinion).

I frankly state that I can find no fault with the logic of the majority opinion. I will not quibble over whether “put into circulation,” or “sent out,” or “discharged,” or “emitted” could not also be interpreted to mean the date the adjudication was dated or published. Nor will I question the possibility of a regulatory agency using third class mail to further reduce the appeal period intended by the Legislature.

What I do challenge is the constitutionality of appeal periods determined by statutes which permit different appeal period times to run for different citizens in the same case or class of cases. As I have pointed out before, built into such statutory provisions, of which the statute before us is one, is the unequal treatment of citizens by government. Under such statutory provisions, the distance the citizen lives from the place of mailing and the U. S. Post Office, over which the state government has no power, controls the appeal period.

It is clear to me that the Legislature intends each party entitled to appeal to have a full 30 days. It does not intend one party to have 29 days because he lives one mailing day away, and another to have, say, 27 days because he lives three mailing days away. From my point of view, this clearly violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.

A notice placed in the mail may never be received. Mail is sometimes lost. Can anyone argue if a party receives postal delayed mail on the 31st day after mail*442ing that the party has not been denied his constitutional right to appeal? See Pa. Const, art V, §9.

I would hold that the 30-day appeal period starts to run only after every party to the action has had thirty days to determine whether to appeal; and that is after “notice” becomes a matter of knowledge or receipt.

I would reverse the order of the court below, overrule the preliminary objections and remand the matter for further proceedings.