DocketNumber: Appeal, No. 1967 C.D. 1977
Citation Numbers: 35 Pa. Commw. 643
Judges: Blatt, Bowman, Crumlish, Disalle, Mencer, Rogers, Wilkinson
Filed Date: 6/7/1978
Status: Precedential
Modified Date: 6/24/2022
Opinion by
In 1976 the Turtle Creek Zoning Board of Adjustment (Board) granted a variance to the intervenor herein, John Sarandis, to construct a 12-unit apartment building in an R-2 residential district in the Borough of Turtle Creek. Neighboring landowners, not parties to this appeal, appealed to the Allegheny ’County Court of Common Pleas. The Court, by Judge Silvestri Silvestri, remanded the ease to the Board to make findings of fact and conclusions of law. This w.as-done and the Board affirmed its earlier decision. Following this action, the appellants here appealed that decision to the court of common pleas. Thereafter, the intervenor filed a petition to require the appellants post bond pursuant to Section 1008(4) of the Pennsylvania Municipalities Planning ' Code (Code), Act. of July 31, 1968, P.L. 805, as amended, 53P.S. §11008(4)
Appellants have raised two questions before this Court: (1) Whether the order requiring and setting the amount of bond is fatally defective because no testimony was presented regarding the alleged sufficiency of the bond;
With regard to the first issue, this Court has held that where a petition to post bond is made by the landowner pursuant to Section 1008(4) of the Code, the court must determine the amount of damages the landowner will suffer as a result of the delay caused by the protestants’ appeal and set bond accordingly. Anthony Appeal, 25 Pa. Commonwealth Ct. 41, 358 A.2d 874 (1976). It is inherent in this rule that the court must have, as appellants suggest, a factual basis upon which to determine the amount of bond that should be required, if any. There is no record here of what
Turning to the second issue, we find no merit in appellants’ contention that it was improper for the intervenor to present his petition to Judge Silvestki to set bond and improper for Judge Silvestki to hear and rule on this petition. Although the record is sparse on this issue, as well as the first, it is clear that Judge Silvestki was assigned and heard the original appeal which resulted in a remand to the Board. It is also clear that after the appellants here became the protesters of record, that counsel for both appellants and the intervenor presented petitions to Judge Silvestri, appellants seeking a supersedeas and inter
Accordingly, we will enter the following:
Order
And Now, June 7, 1978, the order of the Court of Common Pleas of Allegheny County at S.A. No. 488 of 1977, dated September 12, 1977, is hereby affirmed.
Section 1008(4) of the Code provides:
(4) The filing of an appeal in court under this section, shall not stay the action appealed from but the appellants niáy petition the court having jurisdiction of zoning' appeals for a stay. If the appellants are persons who are seeking to prevent a use or development of the land of. another, whether.or not a stay is sought by them, the land-, owner whose use or. development is in question may peti
The intervenor has countered this issue with one of his own contending that appellants are precluded from raising this issue because the appeal should have been taken within 30 days of the entry of the Jujy 26 order requiring appellants to ;post bond. However, since a review of the order dismissing the appeal for failure to post bond derives its. substance and validity from the order to post bond, we find this issue is p'roperly before us on appeal.
See, e.g.. Commonwealth v. Siegel, 49 D. & C. 2d 55 (Washington 1970).
See, e.g., Smith v. Gallagher, 408 Pa. 551, 185 A.2d 135 (1962).