Kennedy v. Upper Milford Township Zoning Hearing Board, et al. (Concurring Opinion)

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[J-60-2003] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT BRIAN KENNEDY AND SUSAN KENNEDY, HUSBAND AND WIFE, v. UPPER MILFORD TOWNSHIP ZONING HEARING BOARD, RICHARD C. DEAN, ROBERT SALASKI, T. RICHARD PARKER, MARYLOU STEFANKO, INDIVIDUALLY AND THE PENNSYLVANIA TURNPIKE COMMISSION BRIAN KENNEDY AND SUSAN KENNEDY, HUSBAND AND WIFE v. UPPER MILFORD TOWNSHIP ZONING HEARING BOARD AND THE PENNSYLVANIA TURNPIKE COMMISSION APPEAL OF: THE PENNSYLVANIA TURNPIKE COMMISSION : : : : : : : : : : : : : : : : : : : : : : : : : : No. 187 MAP 2002 Appeal from the Order of the Commonwealth Court entered on July 12, 2001, at 1753 C.D. 2000, reversing the Order of the Court of Common Pleas of Lehigh County entered on June 30, 2000, at 199-C-0362 & 199 -C-0706 779 A.2d 1257 (Pa. Cmwlth. 2001) ARGUED: May 13, 2003 CONCURRING OPINION MR. CHIEF JUSTICE CAPPY Decided: October 27, 2003 I join the majority s decision to reverse the order of the Commonwealth Court. I write separately to emphasize that more specifically and respectfully, I join the majority opinion insofar as it concludes that the Upper Milford Township Zoning Hearing Board (Board) is a quasi-judicial body; that the Board held an executive session within the meaning of Section 708(5) of the Sunshine Act, 65 Pa.C.S. §708(5), when it engaged in quasi-judicial deliberations during its recess; and that the evidence of record did not support the Commonwealth Court s conclusion that the Board took unlawful official action during that recess. Messrs. Justice Castille and Nigro join this concurring opinion. [J-60-2003] - 2

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